Media law and free speech in 2015 and 2016 so far

Welcome to my first blog of 2016.  It has been a very busy start to the year, which is why this blog comes later than I would have liked. The aim, this year, is to blog far more regularly than last year.  That’s my media law new year’s resolution.  Wish me luck.  First, my traditional summary of media law last year, and then I discuss a few developments in the first two months of this year.

I penned a piece for Business Day in mid-January summarizing, in 1,100 words (how different blogging is!), what the key developments in media law were in 2015.

Here it is in case you missed it: SANRAL and SAA cases gave weight to media freedom.

In the Business Day piece, I discuss the most important case of the year for the media (even though it didn’t involve the media directly) – City of Cape Town v Sanral, as a result of which, once court documents are filed in court, we can now generally regard them as public documents.  There was also the futile attempt by South African Airways to silence the media from publishing a legally privileged report into its financial affairs : South African Airways Soc v BDFM Publishers.  I also discussed the disappointing Western Cape Full Bench decision in Primedia v Speaker of Parliament, where a majority of the court held that parliament’s broadcasting policy – which resulted in images of the Economic Freedom Fighters being ejected from parliament, not being shown on TV; and the signal jamming that took place at the State of the Nation address last year, not being declared unlawful (this case is on appeal to the Supreme Court of Appeal).

I mentioned the decision by the African National Congress – yet to be implemented – to abolish criminal defamation law, the Film and Publication’s Board’s disastrous draft online regulation policy,  and the Press Council’s new Code of Conduct which has been updated to take into account digital speech, including members’ liability for user-generated content. Continue reading

The timely demise of criminal defamation law

posted in Criminal defamation, Defamation, Freedom of expression, Media law, Musings on Media, Political speech on by

Two weeks ago, I presented at a workshop organized by the African National Congress (ANC) on criminal defamation – how it differs from civil defamation, some recent developments across Africa, and why criminal defamation is unconstitutional, in my view.   At the workshop, the ANC made a dramatic and welcome announcement that it would spearhead legislation to rid South Africa of criminal defamation – an announcement which I wrote about in the Mail & Guardian last week.   The announcement was widely covered in the media – a good report by eNCA can be found here.  Unfortunately for the Democratic Alliance (DA), its premature speculation in a media statement before the ANC’s workshop – that the ANC’s intention was to pass insult laws to protect the president – proved to be a spectacular own goal.  (Of course the DA has other problems to deal with at the moment, following the sharing on Facebook by one of its prominent MPs and the shadow minister of police of a post praising PW Botha).

Here is an extract from my speech which I presented at the ANC workshop on criminal defamation. Continue reading

Access to court papers is part of open justice

posted in Media law, Musings on Media, Open justice, Openness on by

This article was published in the Mail & Guardian newspaper on 19 June 2015.

Justice must not only be done, it must be seen to be done. This is the essence of the principle of open justice. Put differently, the public has a right to have access to the courts, to observe how matters will be decided and to obtain court documents relating to those cases.

The past few months have been particularly important for this principle. First, the Supreme Court of Appeal in the South African National Roads Agency (Sanral) case handed down a significant judgment, which clarified that court documents should be available to the public from the time that they are filed – and thus well before the actual court hearing. Continue reading

“It tolls for open justice” – City of Cape Town v Sanral

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Last week, the Supreme Court of Appeal (SCA) handed down its decision in the appeal by the City of Cape Town against a Western Cape High Court decision which had dramatically undermined the principle of open justice.

The City of Cape Town (the City) is reviewing the decision of the SA National Roads Authority (Sanral) to, amongst other things, declare parts of the N1 and N2 national roads as toll roads.  In the course of this review application, Sanral applied to court to restrict the City from referring to what it alleged to be Sanral’s confidential information in one of the City’s affidavits in the review.  The information had been obtained by the City pursuant to the rules of court, which obliged Sanral to make available the administrative record of its decision.

Now this application by Sanral is standard in cases involving confidential information – what happens is that the parties to litigation try to agree to a confidentiality regime that will apply to certain information.  If  a regime cannot be agreed upon, the party seeking secrecy can approach the court to rule on the matter.  Such applications are always considered on the basis that granting secrecy would depart from the general rule of openness, and secrecy will only be permitted exceptionally.

The Western Cape High Court ruled that Sanral had not made out a case for the confidentiality it contended for.   But the court then did something extraordinary – it ruled that the administrative record which Sanral had filed was in any event covered by the “implied undertaking” rule, which had the effect that the record could not be made public without Sanral’s or the court’s consent, until the main review case was heard in court.  This rule, which comes from the law in the United Kingdom, provides that documents discovered by a party in litigation cannot be used for any collateral purpose (such as making the documents public).  The rule also hits any document – such as the City’s affidavit – which quoted from the administrative record.

And the court then went event further – holding that rule 62(7) of the Uniform Rules of Court had the effect that in any event, the public cannot access the content of a court file until the case is called in court.

Continue reading

Democratic Alliance v African National Congress – The Nkandla SMS case

posted in Defamation, Electoral Act, Fact v opinion, Fair comment, Freedom of expression, Media law on by

Ben Winks and I penned an article for the Mail & Guardian last week on the Constitutional Court’s complex and important case involving the DA’s pre-election SMS.  You can read the case here.

Our M & G article, “SMS ruling muddies the waters”, is here.

You’ll see we argue that the minority judgment of Zondo J is right on the facts (so the ANC should have won), and the concurring majority judgment of Van der Westhuizen J is right in principle.  We love the writing and sentiments expressed in the majority judgment of Cameron, Froneman and Khampepe JJ, but we think they got the case wrong on the facts.  However, there are some important and welcome implications of the majority judgment for media law, which I’ll explore in a later blog.