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Chapter 42 Freedom of Expression

Dario Milo, Glenn Penfold & Anthony Stein

42.1Introduction

42.2The Drafting History of FC s 16

42.3The Structure of Free Speech Analysis: FC s 16(1) and FC s 16(2)

42.4The General Approach of our Courts to the Constitutional Right to Freedom of

Expression

42.5The Rationales For Freedom Of Expression

(a)The search for truth (b)The proper functioning of democracy (c)Self-fulifilment and audience autonomy (d)Some other rationales for freedom of expression

42.6The Application of FC s 16(1)

(a)'Everyone' has the right to freedom of expression (b)Direct horizontality of FC s 16(1): Khumalo v Holomisa

42.7Protected Expression: Analysis of FC s 16(1)

(a)Freedom of speech and expression (b)Freedom to receive or impart (c)Information or ideas (d)Freedom of the press and other media (i)Press exceptionalism (ii)Protection of sources of information (aa)Comparative jurisprudence (bb)The preferred approach to the privilege under the

Final Constitution

(e)Freedom of artistic creativity (i)The centrality of context (ii)What is art? (f)Academic freedom and freedom of scientiific research (g)Protecting the means of expression (i)Monopolies (ii)Testing the means of expression: the availability of alternative means (iii)State support for the means of expression and state broadcasters (iv)The Internet

42.8.Excluded Expression: Analysis of FC s 16 (2)

(a)FC s 16(2)(a): Propaganda for war (b)FC s 16(2)(b): Incitement of imminent violence (c)FC s 16(2)(c): Hate speech (i)The arguments for and against hate speech prohibitions (ii)The constitutional treatment of hate speech (aa)The express exclusion in FC s 16(2)(c) (bb)'Advocacy of hatred based on race, ethnicity, gender or religion' (cc)'Incitement to cause harm' (iv)Legislative prohibitions on hate speech (aa)The general approach to assessing the constitutionality of hate speech legislation (bb)Section 29 of the Films and Publications Act (cc)Section 10 of the Equality Act

42.9Major Restrictions on Freedom of Expression

(a)The law of defamation (i)Standing to sue for defamation (ii)Defamatory statements (iii)The challenges to the onus rule and the strict liability rule (iv)The defence of reasonable publication (v)Falsity as an ingredient of the plaintifff's cause of action (vi)Truth for the public beneifit (vii)Remedies: Interdicts, damages and the amende honorable (b)The law of privacy (i)Lack of negligence in media privacy cases (ii)The public interest defence (c)Restrictions designed to serve the administration of justice (i)The principle of open justice (ii)Restrictions on the open justice principle (iii)Broadcasting of enquiries and judicial proceedings (iv)Balancing freedom of speech against the administration of justice (aa)Scandalising the court (bb)The sub judice rule (d)Intellectual property restrictions (i)Parodying famous trademarks (ii)Copyright: Defences to infringement (e)Sexually explicit expression (i)The statutory framework (ii)Pornographic ifilms and publications as protected expression (iii)Assessing limitations on sexually explicit material: pornography as low-value speech (iv)Assessing limitations on pornography: harms sought to be avoided through criminalizing pornography (v)Nude dancing as protected expression (f)Commercial expression (i)Commercial speech as protected expression (ii)Assessing limitations on commercial expression (g)Restrictions in the interest of national security, defence and intelligence (i)General national security restrictions (aa)the Constitution (bb)Minimum Information Security Standards (cc)Protection of Information Act (ii)Other legislative entrenchment of national security restrictions (aa)The Defence Act (bb)The National Key Points Act (cc)The Intelligence Services Act (dd)Other legislation (iii)Case law (h)Prior restraints on publication (i)The presumption against prior restraints (ii)Legislative prior restraint (iii)Judicial prior restraints

42.10Special Protection of Speech in the Legislature

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16. Freedom of Expression

(1) Everyone has the right to freedom of expression, which includes - (a)freedom of the press and other media; (b)freedom to receive or impart information or ideas; (c)freedom of artistic creativity; (d)academic freedom and freedom of scientiific research. (2) The right in subsection (1) does not extend to - (a)propaganda for war; (b)incitement of imminent violence; (c)advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.1

42.1 Introduction*

This chapter deals with the fundamental right to freedom of expression. This is a right that has attracted a great deal of judicial attention since its entrenchment in FC s 16 and its predecessor, IC s 15. We start with a discussion of the drafting history of FC s 16 and the major issues that arose during the drafting process. This is followed by an introduction to the structure of analysis under FC s 16's two parts: the protection in FC s 16(1) and the exclusions in FC s 16(2). We then consider the general approach of our courts to the FC s 16 right, including the dominant approach of balancing the right against countervailing considerations, and the rationales for protecting free speech (including the traditional justiifications of the pursuit of truth, the functioning of democracy and self-fulifilment). Next, we focus on the application of FC s 16(1) in more detail; we consider, amongst others, the meaning and import of the express inclusion of freedom of the media, freedom to receive or impart information and ideas, freedom of artistic creativity and academic and scientiific freedom in FC s

16(1). Some of the issues canvassed in this context are the meaning of 'expression',

the notion of 'press exceptionalism', the protection of journalists' sources, the concept of artistic expression and the protection of the means of expression. Having largely focussed on the protection of freedom of expression up to then, we move to restrictions on freedom of expression that shed light on the nature of the

1Constitution of the Republic of South Africa, 1996 ('Final Constitution' or 'FC').

protection given to freedom of expression. First, we look at the categories of expression excluded from constitutional protection in FC s 16(2): propaganda for war, incitement of imminent violence and, most signiificantly, hate speech (which, in the constitutional context, consists of 'advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm'). In this section we also consider legislative restrictions on hate speech. Second, we examine, at some length, various common law and statutory restrictions on freedom of speech, which each raise fundamental issues as to the proper balance between freedom of expression and countervailing rights and values. In this *The authors would like to thank Michael Bishop and Stu Woolman for their editorial assistance.

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section, we ifirst consider defamation, an area in which free speech clashes with the right to reputation and in which the law has developed dramatically since the advent of constitutional democracy. This is followed by a discussion of privacy, restrictions in the name of protecting the administration of justice (that is, the open justice principle and its implications as well as the criminal offfences of scandalising the court and the so-called sub judice rule), intellectual property restrictions, sexually explicit expression (including pornography, child pornography and nude dancing), restrictions on commercial expression (notably, advertising restrictions), restrictions in the interests of national security, defence and intelligence, and prior restraints on publication. Our main focus in the discussion of these restrictions is assessing the proper constitutional approach that ought to be taken to these restrictions or, put diffferently, where the balance should be struck in these areas of expression. Finally, we consider the special protection of speech in the legislature, including the rule that members of the legislature are not liable for what they say in these institutions that are so central to our democracy.

42.2 The drafting history of FC s 16

In addition to their historical interest, travaux préparatoires may under certain circumstances play a role in the interpretation of a fundamental right.2 The text of the right to freedom of expression under the Final Constitution difffers in notable respects from that of the Interim Constitution.3 Moreover, the clause went

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2See S v Makwanyane & Another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at paras 16-19 ('In

countries in which the constitution is similarly the supreme law, it is not unusual for the courts to

have regard to the circumstances existing at the time the constitution was adopted, including the debates and writings which formed part of the process. . . . Our Constitution was the product of negotiations conducted at the Multi-Party Negotiating Process. The ifinal draft adopted by the forum of the Multi-Party Negotiating Process was, with few changes, adopted by Parliament. The Multi-Party Negotiating Process was advised by technical committees, and the reports of these committees on the drafts are the equivalent of the travaux préparatoires relied upon by the international tribunals. Such background material can provide a context for the interpretation of the Constitution and, where it serves that purpose, I can see no reason why such evidence should be excluded. The precise nature of the evidence, and the purpose for which it may be tendered, will determine the weight to be given to it. . . . Background evidence may, however, be useful to show why particular provisions were or were not

included in the Constitution. . . . [W]here the background material is clear, is not in dispute, and is

relevant to showing why particular provisions were or were not included in the Constitution, it can be taken into account by a Court in interpreting the Constitution'.) through a number of incarnations4 in the relevant Theme Committee of the Constitutional Assembly5 before it settled on FC s 16 in its present form.6 The Explanatory Memorandum expressly recognises the inlfluence of foreign jurisdictions' constitutional protection of expression in the drafting of the clause, and in particular the constitutions of Canada, the United States, Germany, Namibia and India.7 The Theme Committee identiified three 'key issues' that 'troubled South African constitutional drafters' in respect of freedom of expression: ifirst, horizontality versus verticality; secondly 'the bearer of the right issue'; and thirdly what was termed 'the two-tier approach to restrictions'.8 We shall discuss the last of these issues ifirst, and then consider the ifirst and second issues.

3Constitution of the Republic of South Africa Act 200 of 1993 ('Interim Constitution' or 'IC'). IC s 15

read: (1) Every person shall have the right to freedom of speech and expression, which shall include freedom of the press and other media, and the freedom of artistic creativity and scientiific research. (2) All media ifinanced by or under the control of the state shall be regulated in a manner which ensures impartiality and the expression of a diversity of opinion.

4At least three variations of the clause were considered: the 'Provisional Text', the 'Redrafted

Provisional Text: Option 1' and the 'Redrafted Provisional Text: Option 2'. See Constitutional Assembly, Constitutional Committee, Sub-Committee: Draft Bill of Rights Explanatory Memorandum of Theme Committee 4 of the Constitutional Assembly responsible for fundamental rights: Explanatory Memorandum Vol. 1 (9/10/1995)('Explanatory Memorandum').

The Provisional Text provided:

(1) Every person, including the press and other media, shall have the right to freedom of speech and expression. (2) This right shall include the freedom to receive and impart information and ideas without interference by public authority and regardless of frontiers. (3) Any propaganda for war shall be prohibited. (4) Any advocacy of racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited. (5) All media ifinanced by or under the control of the state shall be regulated in a manner that ensures independence, impartiality and diversity of opinion. The Redrafted Provisional Text: Option 1 provided: (1) Everyone has the right to freedom of speech and expression, including - (a)freedom of the press and other media; and (b)freedom to receive or impart information and ideas. (2) The speech and expression protected in subsection (1) does not include either (i)propaganda for war; or (ii)advocacy of hatred that constituted incitement to discrimination, hostility or violence, and that is based on race, ethnicity, gender, or religion. (3) The state must regulate any media that it ifinances or controls to ensure that it is impartial and presents a diversity of opinion. Redrafted Provisional Text: Option 2 was the same as Redrafted Provisional Text: Option 1, but with clause (2) removed. The two-tier approach, which was relflected in the limitations clause of the Interim Constitution, affforded greater protection to 'political expression' over other forms of expression by requiring that limitations on political expression meet the higher criterion of 'necessity' in order to be justiifiable.9 As the

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Explanatory Memorandum notes, the ifinal text rejects this two-tier approach and hence 'political expression' does not as a matter of form enjoy greater protection in the text of the Constitution than, for example, artistic expression or commercial expression.10 Returning to the application issue, in response to the case law that had developed under the Interim Constitution, the Explanatory Memorandum relflects a conscious decision to allow the right to freedom of expression to apply 'horizontally' as well as vertically. Referring expressly to the lower court decision in De Klerk v Du Plessis,11 which had then only recently been decided, the Theme Committee noted that if the right to freedom of expression is only vertical in its operation, as the De Klerk Court had held in respect of the Interim Constitution, it 'will have a major impact on the common law offfences of criminal defamation, blasphemy and contempt of court' but not on other important areas of the common law. To allow it to operate horizontally would facilitate, for example, the reassessment of the law of defamation which 'in recent years has been hostile to claims of press freedom'.12 Moreover, the Explanatory Memorandum notes that there are strong jurisprudential arguments against conifining the right to freedom of expression to vertical application since this would result in the paradox that aspects of the common law, which have less democratic legitimacy, will be subject to less searching scrutiny than legislation,

5A general background to the drafting process and passing of the Final Constitution is provided on

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