More media law podcasts – disinformation and surveillance

posted in amaBhungane, Bulk surveillance, COVID-19, Defamation, Disinformation, Fake news, Media law, Musings on Media, Podcast, Privacy, RICA, Surveillance on by

Following the release of the very popular open justice podcast (episode 1), you can now listen to episodes 2 and 3.  Listen to all the episodes here or on Spotify or Apple.

In episode 2, I discuss disinformation and whether legal regulation is required, with William Bird of Media Monitoring Africa.  This was recorded before the COVID-19 disaster declaration – we now have, of course, a crime of publishing fake news about COVID-19.  See my previous blog on that crime here.

Then, in episode 3, I discuss unlawful surveillance – especially of journalists – with Sam Sole of amaBhungane, and Prof Jane Duncan, an expert in the field.  You can read Sutherland J’s famous judgment in favour of amaBhungane and Sam in their challenge to RICA here and my blog on his judgment here. We eagerly await the Constitutional Court’s ruling in the confirmation application, heard on 25 February 2020.  Incidentally, COVID-19 brought its own surveillance legislation – in the form of the track and trace regulations; read about them in my blog here.

Episode 4 – to be released next Wednesday – is on media ethics, with the Press Ombudsman Pippa Green, and Prof Glenda Daniels.  And we end the series the following Wednesday with the final episode where my guests are Thandeka Gqubule-Mbeki and Prof Anton Harber.  We take a deep dive into their defamation case against the Economic Freedom Fighters.

Hope you enjoy – and stay safe!

Webber Wentzel media law podcasts

posted in Broadcasting, Court reporting, Live streaming, Media law, Musings on Media, Open justice, Openness, Podcast on by

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!


Criminalising fake news about COVID-19

posted in Access to information, Censorship, Fake news, Freedom of expression, Media law, Musings on Media on by

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.

Continue reading

Snowden, Sam Sole, Sutherland and Surveillance

posted in amaBhungane, Bulk surveillance, Freedom of expression, Media law, Musings on Media, National security, Openness, Privacy, Privacy Law, RICA, Surveillance on by

This week, the Pretoria High Court handed down a momentous decision on South Africa’s surveillance laws that made international headlines.  You can read the judgment here:

Indeed, in response to a tweet by Privacy International about the judgment, the best known modern whistleblower in the world, Edward Snowden, tweeted, ‘Wow’.

The decision has – at least for now – outlawed bulk surveillance in South Africa, and also declared a number of provisions in South Africa’s legislation permitting surveillance – known as RICA – unconstitutional.  Next step is the Constitutional Court.

I was lead attorney in the case for the applicants, the investigative journalists at amaBhungane, and Sam Sole, its co-managing director, who was placed under surveillance in 2008 simply for doing his job.  Sam’s take on the case, an excellent read, is available here:

Here’s my summary of the case below, which was published in Business Day this week here:

Continue reading

Why waving the apartheid flag is hate speech

posted in Equality Act, Hate speech, Media law, Musings on Media on by

Lavanya Pillay, an associate in my team at Webber Wentzel, and I recently acted for the South African Human Rights Commission who – with the Nelson Mandela Foundation – applied to the Equality Court for an order that gratuitous displays of the old South African flag – the apartheid flag – constitutes hate speech under the Equality Act, as it is known in its short-hand version.

We penned an article which appeared in Sunday Times on 1 September 2019, and which was based on our analysis below.

On Wednesday 21 August 2019, Phineas Mojapelo, the Deputy Judge President of the South Gauteng Division of the High Court, ruled that the display of the pre-1994 South African flag – the apartheid flag – constitutes hate speech. It was a powerful ruling and is one in a series of high profile hate speech cases which our courts have recently had to grapple with.  You can read the decision here.

Earlier this month, SANEF and a number of journalists argued in the Equality Court that the EFF’s targeting of them amounted to hate speech.

Jon Qwelane is bringing a constitutional challenge before the Supreme Court of Appeal (SCA) to the hate speech provisions in the Equality Act following the publication of his article, “Call me names – but gay is not okay“.

And most recently, on Tuesday 27 August 2019, the Constitutional Court heard argument as to whether Cosatu’s Bongani Masuku had engaged in hate speech against Jews when he made threatening comments directed at “Zionists”.  Judgment is awaited in all these other cases.

The challenge to the apartheid flag before the Equality Court was brought by the Nelson Mandela Foundation and the South African Human Rights Commission (SAHRC) following nationwide public demonstrations in October 2017, organised by Afriforum, against farm murders. During these demonstrations, some protestors displayed the apartheid flag.

The applicants sought an order declaring gratuitous displays of the apartheid flag to be hate speech, unfair discrimination and harassment under the Equality Act. ‘Gratuitous’ displays are those that do not serve any genuine academic, scientific, artistic or journalistic purpose – these receive protection in the Equality Act itself

Afriforum, who opposed the application, claimed that the Equality Act, in terms, only prohibits “words” which could reasonably be construed to be hate speech. According to Afriforum, the apartheid flag (a symbol) could not constitute hate speech as defined in the Equality Act as it did not amount to “words”. Afriforum had a point, if “words” is to be interpreted literally.

But in a demonstration of the potency of principles of constitutional interpretation, this literal approach was rejected by Mojapelo. The reference to “words” in the Equality Act must be given a generous meaning going beyond mere verbal representations. It is obvious that hate speech can extend beyond words. To hold otherwise would be irrational, would run contrary to the letter and spirit of the Constitution and the main purpose of the Equality Act which is to prohibit all hate speech (and not just “words”). So “words” does not only mean “words” but extends to non-verbal acts – such as displaying a flag.

The next step was for the court to unpack the meaning of waving the apartheid flag. Its dominant meaning was clear – these acts were an endorsement of the system of apartheid. In a particularly poignant paragraph of the judgment, Mojapelo said: “Those who display the Old Flag choose deliberately not only to display the apartheid discriminatory, divisive and oppressive flag; they also consciously and deliberately choose not to display the new democratic all-uniting non-racial flag. They choose an oppression symbol over a liberation symbol. … They intend to incite and awaken feelings of white supremacy against black people … They wish to remind black people of the oppression, humiliation, indignity and dehumanisation that they moved away from and do not wish to relive or return to.”

Mojapelo concluded that gratuitous displays of the apartheid flag satisfied the hate speech test in the Equality Act: a clear intention to be hurtful, harmful and to propagate hatred against black South Africans. It was therefore prohibited hate speech.

There are some – including Afriforum which is applying for permission to appeal the judgment – who say that the ruling undermines freedom of expression. But this is not so. Our courts have never held that the right to freedom of expression is absolute and trumps all others. It is expressly limited by the constitutional rights to human dignity and equality. Hate speech cases require courts to balance these rights in the context of the facts of the case and with an appreciation of South Africa’s repressive and ugly history. The apartheid flag case clearly struck that balance correctly. Gratuitous displays of the flag constitute hate speech, as Mojapelo held – even if all three requirements – hurtful, harmful and propagating hatred – are necessary for such a finding. On the free speech side of the balance, displays of the flag that are not gratuitous – such as using it to illustrate a news story on the case itself or in a satirical cartoon mocking Afriforum for losing the case would not constitute hate speech under the Equality Act.

But beyond the law, gratuitously displaying the apartheid flag is a callous act that has no place in South Africa. It is as bad, as Mojapelo said, as uttering the ‘k’ word. The apartheid flag case has made a significant contribution to our emerging hate speech jurisprudence. Judgements in the cases involving SANEF, Qwelane and Masuku will provide further clarity. Ultimately, the question in all these case is the same – has the legal line been crossed between free speech and hate speech.

[In the SANEF case and in the Masuku case, we act for the NGO Media Monitoring Africa, intervening as amicus in each case].