The spy who notified me: Six-love to amaBhungane in the RICA Constitutional Court case

posted in Access to information, amaBhungane, Bulk surveillance, Freedom of expression, Media law, Musings on Media, National security, RICA, Surveillance on by

I wrote a piece on the seminal victory for amaBhungane in its RICA and bulk surveillance challenge for Daily Maverick – published here  The case itself is available here and the High Court’s decision (which was essentially upheld) can be read here

It’s also available on amaBhungane’s website here

Lavanya Pillay from my team and I acted for amaBhungane and Sam Sole, assisted by three fantastic counsel – Steven Budlender SC, Stuart Scott and Itumeleng Phalane.

Here’s my piece.  I think my original suggested headline was nice (the subs didn’t) – The spy who notified me (post-surveillance notification has been carved into our law).

Continue reading

Criminalising fake news about COVID-19

posted in Access to information, Censorship, Fake news, Freedom of expression, Media law, Musings on Media on by

Criminalising fake news is usually not a good thing in a democracy.   These kinds of laws have frequently been abused by authoritarian regimes to punish critical reporting.  As panic about the spread of COVID-19 around the globe set in, so too did the dissemination of false information about the pandemic.

The South African government’s response was to create a criminal offence in its regulations issued last week about the pandemic.

While these regulations were being passed, somewhat ironically, I was on a panel at Webber Wentzel (streamed live over Twitter but not open to the public on account of social distancing guidelines) where Media Monitoring Africa relaunched its Real 411 campaign.  This campaign inter alia seeks to address disinformation on digital media.  I was honoured to share the panel with retired Constitutional Court judge Zak Yacoob – one of my favourite judges – and my former Webber Wentzel colleague, the brilliant Avani Singh.   You can watch a news report about the relaunch here and visit the Real 411 site here

Johan Thiel and I penned a piece for Daily Maverick on the South African government’s false Covid-19 news regulations.  The piece is here.  It was also republished by the UK media law site Inforrm here.

Another interesting piece on the issue is Advocate Michael Laws’ well-argued article in Daily Maverick, with a catchy title including “Corona Censorship”, here

I reproduce our Daily Maverick piece below.  The bottom line in my view is that whatever the wisdom of the fake news law, it would probably in this specific and exceptional context pass constitutional scrutiny.  This is not at all to say that false news laws generally are justifiable; they are not.  But this law sets the bar for prosecution very high – essentially only publishing information you know to be false about COVID-19 would be punished.   Freedom of expression cannot, at least in this context, be used to justify the publication of statements that the speaker knows to be false, and with the intention to deceive the public.

Continue reading

Identifying suspects: Cliff Richard v the BBC, and SA law

posted in Access to information, Court reporting, Privacy, Privacy Law, Reporting restrictions on by

Molebogeng Kekana and I recently wrote a piece for Daily Maverick on the famous UK privacy case where Cliff Richard successfully sued the BBC for privacy. You can read the case (if you have lots of time on your hands) here.

In our article, we also address the position in South African law – and in particular that it is in general a myth to say that the media cannot identify a suspect before he or she appears in court.  By and large, this only applies to cases involving (i) children accused, and (ii) other accused where the crimes of extortion or sexual offences are concerned.  In the former case, there is a general rule that the child cannot be named without the court’s permission.  In the latter scenario, the identity of the accused can be revealed only when he or she has pleaded to the charge (though I maintain that this is probably unconstitutional).

We also mention the fact that the publishers of the book The Lost Boys of Bird Island decided not to the name the third National Party official implicated in the allegations in the book.

Read our article here.

 

Henri van Breda, Visvanathan Ponnan and cameras in the court

posted in Access to information, Broadcasting, Court reporting, Live streaming, Media law, Musings on Media, Open justice, Openness on by

Visvanathan Ponnan, judge of the Supreme Court of Appeal (SCA), likes his open justice judgments to have good openings.  In handing down the leading decision on the right to access court papers in 2015 – where the City of Cape Town sued the South African National Roads Authority Ltd over its toll road project – Judge Ponnan began, “with apologies to John Donne of course, perchance he for whom the toll tolls may be so ill as not to know that it tolls for open justice.” 

So too his latest judgment for a unanimous SCA on Wednesday in the Henri van Breda media appeal – “TV, or not TV, that is the question”, Ponnan JA quoted. 

And what a judgment it was. In a scholarly analysis worthy of a master’s thesis – all the more remarkable for the fact that the argument in the appeal was only a month before – Judge Ponnan has boldly gone where no appeal court has gone before, marrying the age-old principle of open justice with developments in modern communications technology.  

The punch line of the case is that broadcasting court cases is now the general rule and not the exception.  The media is entitled as a matter of constitutional right to broadcast court proceedings in their entirety (whether civil or criminal trials, applications or appeals). It is for anyone contending otherwise – the accused in a criminal trial or witnesses, for example – to persuade the court that broadcasting should not take place. This is a fundamental and profound change in approach – the “starting point”, as Ponnan JA puts it, is the right to broadcast courts on whatever platform – whether it be internet streaming, radio or television.

Continue reading

Signal jamming, parliamentary broadcasts, evicting MPs, and access to share registers – the appeal courts speak

posted in Access to information, Broadcasting, Freedom of expression, Media law, Musings on Media, Open justice, Openness, Parliament, Political speech, Signal Jamming on by

I acted for Primedia Broadcasting and the South African Editors’ Forum in the appeal to the Supreme Court of Appeal (along with Right2Know and Open Democracy Advice Centre) concerning the now infamous signal jamming and broadcast ban that occurred during last year’s State of the Nation (SONA) address in Parliament. The SCA ruled in our clients’ favour last week. I penned a piece for Business Day, which was published yesterday, and which you can read here.

The case is a wonderful continuation of the openness jurisprudence of the SCA (and the Constitutional Court).  It’s a powerful judgment.  We will know in a few weeks whether the speaker of parliament and the minister of state security will seek to appeal to the Constitutional Court.

Of course, this was not the first appeal judgment dealing with free speech and SONA 2015 – the Democratic Alliance succeeded in March this year in a challenge to the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004.  Section 11 of that Act provided as follows: “A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.”  This provision had been used to justify the forcible ejection of Economic Freedom Front MPs who demanded at SONA 2015 that president Zuma tell us when he would be paying back the money spent on his Nkandla residence.

The Constitutional Court ruled that section 11 was unconstitutional because it covered the arrest and removal of MPs.  It would be cured by reading-in the words “other than a member [of parliament]” after the word “person” at the beginning of the provision.

The other interesting development from late September this year was that the Constitutional Court refused Nova Property Group Holdings Ltd and related companies leave to appeal from the SCA’s ruling that it provide access to its shareholder registers in terms of section 26(2) of the Companies Act (I acted for the amicus, amaBhungane, whose managing partners had made submissions on what became section 26(2) of the Companies Act in parliament in 2008: see a contemporaneous article here) .  This means that the SCA’s word on the issue is in fact the last word – so section 26(2) creates an absolute, unqualified right of access for the media and the public to companies’ shareholder registers. I wrote about the SCA decision when it came out in the Financial Mail, read it here.  You can also read some background about the facts of the case here.

All in all, some fantastic media freedom decisions in the recent weeks.  While we contend with such scandals as #NkandlaGate, #GuptaGate #ShaikGate #NeneGate #HlaudiGate #WaterkloofGate #SpyTapesGate #DuduMyeniZumaGate #AlBashirGate #SecrecyBillGate #SABCGate #SOCsGate #SARSGate #PravinGate etc, at least we can look to our courts to affirm our democracy.