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

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 →

Democratic Alliance v African National Congress – The Nkandla SMS case

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.