Webber Wentzel media law podcasts

On Wednesday, Webber Wentzel launched the first episode in our media law podcast series, which deals with the important principle of open justice, exceptions to the principle, and broadcasting/ streaming the courts.

I hosted two fascinating guests. The first is Advocate Andrea Johnson of the National Prosecuting Authority, who with Gerrie Nel successfully prosecuted Oscar Pistorius for murder (amongst other important prosecutions). This was the first criminal trial that was broadcast/ streamed to the public, and forms a large part of the discussion. The second guest is Franny Rabkin, leading legal journalist, Mail & Guardian associate editor, brilliant writer and expert analyst of legal issues.

You can listen to the podcast here or on Spotify or Apple Podcasts. It’s just over 30 mins – so something different to do during the national lock down.

In the next few weeks, we will drop a podcast every Wednesday. The next topics (not necessarily in order of release) include surveillance of journalists with Jane Duncan and Sam Sole; media ethics with Prof Glenda Daniels and the Press Ombudsman, Pippa Green; disinformation and defamation with William Bird; and a case study on disinformation with Thandeka Gqubule-Mbeki and Prof Anton Harber – a deep dive into their successful defamation case against the EFF (read the case here).

Hope you enjoy listening as much as I enjoyed the recording!

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.

Continue reading →

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 →