The Media - December 2012 - (Page 35)
DARIO MILO IS A PARTNER AT WEBBER WENTZEL
Our right to publish and be damned
DARIO MILO explains why the film and publication ruling is so important for freedom of speech in South Africa.
IN LATE SEPTEMBER, THE CONSTITUTIONAL COURT handed down its most momentous ruling yet on freedom of speech. The case concerned the constitutionality of aspects of the Films and Publications Act of 1996 following amendment in 2009. The applicants, Print and Digital Media South Africa and the South African National Editors’ Forum, complained about sections in the Act compelling anyone who wished to distribute a “publication” to first put the publication before the Films and Publications Board if it contained “sexual conduct which violates or shows disrespect for the right to human dignity, degrades a person, or constitutes incitement to cause harm”. Failure to put such a publication before the board for classification was a criminal offence punishable by up to five years in jail. “Sexual conduct” is widely defined, including sexual intercourse, male genitals being in a state of arousal or stimulation, and the undue display of genitalia. And so is “publication”, which includes books, journals, magazines, and even artworks such as Brett Murray’s work, ‘The Spear’, which excited so much controversy earlier this year. The definition even includes all internet speech – such as comments on Twitter or Facebook. So even a discussion on the internet by South Africans on the explicit sex scenes in a movie or book, say ‘The Girl with the Dragon Tattoo’, would potentially be hit by the prohibition. There was a very narrow exemption from this rule: only newspapers that are regulated by the Press Ombudsman did not need to submit material for classification. Cumulatively, therefore, the ban on publication before submitting the material for classification – what is known in our law as a prior restraint – covered wide ground indeed. It is, therefore, welcome news that the Constitutional Court struck down the prior restraint as an unjustifiable infringement of freedom of expression. The Court also ruled that the provision could not be saved by clarifying certain of the criteria for classification. It had to be removed from the Act in its entirety. The Court’s decision is most important in the context of its treatment of prior restraints on publication. If postpublication restrictions on speech can be said to “chill” free speech, prior restraints, which may mean that the speech never sees the light of day, have been said to “freeze” speech. The Court’s ruling in this regard – although handed
SO EVEN A DISCUSSION ON THE INTERNET... ON THE EXPLICIT SEX SCENES IN A MOVIE OR BOOK... WOULD POTENTIALLY BE HIT BY THE PROHIBITION.
down in the context of the Films and Publications Act – will have ripple effects on other areas of media law, such as defamation. The Court held that “an effective ban or restriction on a publication by a court order even before it had ‘seen the light of day’ was something to be approached with circumspection and should be permitted in narrow circumstances only”. The Court confirmed that prior restraints would be allowed only in exceptional circumstances. This, in my view, has the result that court interdicts to restrain publication – such as we have witnessed frequently in the past (including the Mail & Guardian’s reportage of Oilgate) – would now only be granted in the most egregious of cases. In practice, it will probably be necessary for a complainant to effectively show malicious or at least reckless reporting on the part of a newspaper or broadcaster to succeed with such a prior restraint. At a philosophical level, the Constitutional Court in this case has indicated a preference for a post-publication approach to sanctioning unlawful content. “The mainstay of the law is to encourage lawful conduct rather than to seek to guarantee lawfulness by restricting conduct altogether... Should a publisher choose not to pursue the avenues available to gain certainty about the lawfulness of intended publication, then he must bear the risks attendant upon the decision to publish.” This could essentially be paraphrased as “publish and be damned”. Publishers make decisions about whether content is unlawful daily – they consider the legal and ethical considerations concerning a proposed publication and, if they get it wrong, they could be sued for defamation or invasion of privacy, in some cases face criminal liability, and may be reported to the Press Council, the Broadcasting Complaints Commission of South Africa, the Advertising Standards Authority, and the Films and Publications Board. Of most significance given the threats faced by the media with the imminent passage of the Protection of State Information Bill (also known as the Secrecy Bill), is the Court’s confirmation of the “vital role of a healthy press in the functioning of a democratic society. One might even consider the press to be a public sentinel”. And, “in some instances, the very delay in bringing important information to the public’s attention makes inroads into the right to freedom of the press and other media”. If our parliamentarians falter in passing unconstitutional legislation – such as the Secrecy Bill in its current form – at least we know that our courts will rise to the occasion. n
December 2012 | themedia | 35
Table of Contents for the Digital Edition of The Media - December 2012
The Media - December 2012
Don’t expect a quick hop over the digital divide
The unlikely media champion
Looking back at 2012
5 Ws, 1H and 1‘What the F’
Spies, newshounds and watchdogs
Getting closer to the customer
Content marketing drives editor evolution
2013: An even better year for content marketing
Launching media in 2012
Time to consider becoming an astronaut?
The case of Zuma versus Zapiro
Giving children a voice
A global giant sneaks into SA
The sorry state of journalism
Don’t they know journalists don’t bite?
Recipes for a good life and a guide to great radio
Advertising’s mad scientists and a festival of creativity
Our right to publish and be damned
The Media - December 2012