Media law developments in the third quarter of 2021

I haven’t posted anything for a while and this is an update post to share some of my recent pieces in the media, and other developments

At the beginning of July this year, the Constitutional Court handed down its decision in the CR17 case – where President Ramaphosa successfully challenged the Public Protector’s report where she found he had acted unlawfully in relation to donations made to his CR17 election campaign. We acted for amaBhungane, who was interested in the case not because it thought the Public Protector’s report was correct but because it argued that if the Executive Ethics Code did not require disclosure of donations made to internal political campaigns, it was unconstitutional. In the piece I authored with Lavanya Pillay, we analyse the Con Court’s decision – available here – which held that the Full Bench of the High Court ought to have considered amaBhungane’s constitutional challenge, having found that the Code did not require disclosure by Mr Ramaphosa. You can read our Daily Maverick analysis, ‘To disclose or not to disclose”, here. The Full Bench of the High Court acted swiftly in re-enrolling amaBhungane’s application for hearing: the application was heard on 7 September 2021. Judgement awaited.

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

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).

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Criminalising fake news about COVID-19

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.

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

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

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.

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