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.

Space was limited and my article could also have referred to other free speech and media law developments in 2015.  On the legislative side, the Cybercrimes and Cybersecurity Bill, the Films and Publications Amendment Bill, the Broadcasting Amendment Bill , the Copyright Amendment Bill, and the Protected Disclosures Amendment Bill were all circulated last year.   All of these bills – with the exception of the Protected Disclosures Amendment Bill  – contain provisions which arguably restrict free speech and media freedom, and should be studied closely.  For some analysis of some of the difficulties posed by the Cybercrimes and Cybersecurity Bill, see R2K’s submission; see the SOS Coalition’s response to the Broadcasting Amendment Bill (the Bill would remove the power of the National Assembly to appoint non-executive members of the SABC Board, and give this power to the Communications Minister); and for a scathing and justified critique of the Copyright Amendment Bill, see this Anton Mostert Chair of Intellectual Property Blog.    

More about these bills during the course of the year.

Three additional 2015 court decisions are also worthy of mention, one concerning prior restraint and the other two access to information.

In Mtyhopo v South African Municipal Workers Union National Provident Fund , the Constitutional Court overturned a prior restraint against a member of a provident fund.  The case is interesting because of the approach taken by the court to whether a newspaper article quoting the appellant was defamatory of the fund.  The court held that even though the appellant had omitted to tell the journalist an important fact relevant to a dispute with the fund, this was irrelevant because the article itself did not have the effect of reducing the fund’s reputation. All in all, a unanimous decision of the Constitutional Court which applies general principles of defamation in a speech-protective manner.

We also saw another successful application under the Promotion of Access to Information Act (PAIA) by the media against a private body:  Theobald v Alliance Mining Corporation Ltd (in liquidation) (Case No 24874/2013; Johannesburg High Court, 14 October 2015 – unavailable online).  Financial journalist Stuart Theobald and the Business Day succeeded in obtaining records from a section 417 liquidation enquiry into the collapse of Alliance Mining (a company that had been listed on the JSE AltX), as well as a report from Grant Thornton into what had happened at the company.  You can read a newspaper report about the case here.   The case is another example – the first was the Mail & Guardian’s success against the FIFA Local Organising Committee for its tender records in 2010 – of how our courts will allow the media access to the records of powerful private companies in appropriate cases.  As Satchwell J held in the Theobald case, “[a]ccess to information is now the norm and … the grounds of refusal are to be narrowly construed”.  The judge proceeded to reject all the grounds of refusal put up by the liquidators for refusing access to the records, and would likely have held the public interest override to have applied, even if any of the grounds of refusal were sound.

The final 2015 case I want to mention here is Du Toit v Stellenbosch University.  This was a PAIA case brought by Media 24 against Stellenbosch University for access to a forensic report by KPMG dealing with irregularities involving the intervening party in the case, Jurie Roux.  Roux was employed by the university at the relevant time (he is now CEO of the South African Rugby Union).  The basis upon which the university (a public body) refused access was that the KPMG report was legally privileged.  Before the hearing of the case, the university withdrew its opposition.  Rogers J held that the KPMG report was indeed legally privileged, as KPMG had been tasked with reporting to the university on matters which were anticipated to give rise to litigation.  But by withdrawing its opposition in the case, the university had waived the privilege.  The report had to be released, as Roux could not benefit from any privilege and the fact that the report defamed him was not a ground to refuse access.  You can read a Netwerk 24 article summarizing the report and its damning findings against Roux, and the report itself, here.

As for 2016 so far, it has been a busy year already for free speech and media law.  Two areas of constitutionally unprotected speech have been in the spotlight.  First, we witnessed the racist speech of Penny Sparrow and others (see an EWN article summarizing her post and its criminal consequences here).  Many commentators discussing her disgraceful social media post focused on section 16(2) of the Constitution, which says that speech which advocates hatred based on race (amongst other grounds) and that constitutes incitement to cause harm, is not constitutionally protected speech.  There is also a more expansive definition of “hate speech” in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, which states that no person may publish words against others which demonstrate a clear intention to be hurtful, harmful or promote or propagate hatred based on race (amongst other grounds).

The second category of unprotected speech that has been in the spotlight is incitement to imminent violence – which is also not constitutionally protected under section 16(2) of the Constitution.  This was the basis for the decision by Louw J in Gupta v Malema.  The judge interdicted Julius Malema and the Economic Freedom Fighters after Malema is reported to have said that the safety of journalists working for The New Age and ANN7, as well as the Guptas and their property, could not be guaranteed.  Louw J held that the Guptas had a right not to be threatened with violence and they reasonably apprehended this from Malema’s statements.

An open justice development worth highlighting  is Combined Artistic Productions CC v Ketsekele (Case No 32492/ 2012; Pretoria High Court; 15 January 2016 – not available online).  The production house applicant applied for permission to stream live over the internet the application for leave to appeal by an attorney implicated in a Road Accident Fund judgment.  What made this a novel case was that the applicant sought – and was granted – permission to stream the proceedings live from court via Twitter using a mobile phone or tablet – i.e. without installing cameras to record and broadcast the feed.   Fortunately, after the Oscar Pistorius case revolutionalized broadcasting courts even in criminal cases (see my blog on the decision here), many court cases are now televised or streamed over the internet without any controversy – especially appeals, applications and judgments. The public has been treated, for example, to the live internet streaming of the appeal by the National Prosecuting Authority against Oscar Pistorius in the Supreme Court of Appeal last year (here’s the judgment on the appeal); and most recently, the Constitutional Court’s Nkandla case (where judgment on the application is reserved but keenly awaited by all, except, perhaps, our president).

2016 promises to be another important year for media freedom and free speech.  Watch this space.