Freedom of Expression in South Africa PDF

Freedom of Expression and Other Freedoms By Banathi Nkehli The Right to Freedom of Expression is not only a means to speak candidly about what our life is, but a vessel for us to speak about how we have experienced such a life. – Banathi Nkehli The Constitutional Right to Freedom of Expression •...

Freedom of Expression and Other Freedoms By Banathi Nkehli The Right to Freedom of Expression is not only a means to speak candidly about what our life is, but a vessel for us to speak about how we have experienced such a life. – Banathi Nkehli The Constitutional Right to Freedom of Expression • Freedom of expression is an existential right • It the cornerstone for any functioning democracy and therefore must be protected. • To not have this right would be the equivalent to having no mouth yet a strong desire to scream. • While we do have the right to freedom of thought, religion, belief and opinion, what does that right mean without the ability to manifest those thoughts in the abstract, into our world. • The right to freedom of expression is encapsulated in section 16 of the Constitution of the Republic of South Africa • The section has two caveats: • It protects free speech • However, it puts a hard limitation on that expression under three circumstances The Constitutional Right to Freedom of Expression – Section 16 • Section 16(1) - The Constitutional Right to Freedom of expression guarantees: • • • • Freedom of the press and other media Freedom to receive or impart information or ideas Freedom of artistic creativity Academic freedom and of scientific research • Section 16(2) - This guarantee is not extended to: • Propaganda for war • Incitement of imminent violence • Advocacy of hatred based on race, ethnicity gender or religion; and that which constitutes incitement to cause harm • HOWEVER, it is not always so clear if speech is protected or excluded due to its very complicated nature Understanding Speech • Speech is complicated • It is highly contextual – This refers to a whole lot of things • Context can either refer to proceedings (It is inappropriate to laugh at a funeral) • Context can also refer to social norms (The values of the “public” and society’s sense of morality) • Context can also refer to political climate (socio-economic circumstances that influence discourse) • Context can also refer to one’s life story (where, when and under what circumstances were they born) • The intention of the speaker in his/her/their words and the meaning derived by the listener exist independently of one another – because certain contexts may clash with one another • Speech is not just words, it is also: symbols, pictures, intonation, body language, numbers are a language too • Speech sits in the intersection between culture and politics • This does NOT MEAN THAT SPEECH IS ENTIRELY SUBJECTIVE and therefore a speaker and a listener will never understand each other • It just means • Speech operates in layers. • Universality in understanding is inherently flawed. • Therefore, speech is something that has a subjective interpretation that can be understood in the general setting. • Communication is not WHAT it is about, but rather HOW it is about. • This is important because it’s relevant in addressing the penumbral (shadowy and indefinite) way in which speech is regulated. Freedom of Expression - International Law • The right sees its origins in the: International Covenant on Civil and Political Rights [ICCPR] – In two articles 19 and 20. • Article 19 • Everyone has the right to hold opinions without interference • Everyone has the right to freedom of expression and includes the right to: • Seek • Receive • Impart information • Ideas of all kinds Either orally, in writing or in print, in the form of art, or through other media of his/her/their choice • This right is not without its responsibilities and is subject and the right is restricted under two instances • In matters where it is important to respect the reputation and rights of others [Defamation] • For the protection of national security or public order of public health or morals. • Article 20 • This is the internal limitation of this right: • Any propaganda for war shall be prohibited by law. [would calling for a country to condemn war amount to advocating for war] • Any advocacy national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law Free Speech is not Understood the same Everywhere • Free speech is not understood the same internationally • The United States of America and South Africa are two different countries that construe this right differently • The United States of America • Has an absolutist approach to freedom of expression: The First Amendment, among other things, guarantees Freedom of Expression by prohibiting Congress from restricting the press or the of or the rights of individuals to speak freely. • The right to free speech has a sacred place wherein the Courts recognize a concept known as, “viewpoint discrimination” meaning that the limitation on Freedom of expression as envisioned in the US does not limit the content of one’s speech and thus the limitation that exists in section 16(2) of South Africa constitution does not exist in their construction of the right. • The Republic of South Africa • The courts have acknowledged that the American construction of the right to freedom of expression is incompatible with the South African construction • In S v Mamabolo the court stated that it would be inappropriate to draw on American case law to decide matters on freedom of expression, as we have limits on the content of our speech. • Why is it important to know this • The right to freedom of expression, by the very nature of expression is inherently tied to other rights within our justiciable Bill of Rights. • To have rights that trump these interlocking rights [where they compete with one another] is antithetical to what the Constitution requires. Understanding the Content of the Right to section 16(1) – Protected Speech • The content of section 16(1) protects what we refer to as ‘Protected Speech’ this is the expressions that are guaranteed protection and the limitation of such rights must not be done in a way that is not reasonable and justifiable in an open and democratic society. • HOWEVER – This is a right that can be limited and is often weighed against other competing interests as well. • • • • • The Freedom of the Press Broadcasting Freedom to receive and impart information Freedom of artistic creativity Academic freedom and freedom of scientific research Freedom of the Press • Section 16(1)(a) of the Constitution guarantees: the right to freedom of expression and makes special mention of freedom of the press and other media. • NB Khumalo v Holomisa • Bantu Holomisa was a high profile South African politician in a party known as the United Democratic Movement (UDM). • Holomisa sued the applicants in this matter for defamation because the applicants had published an article stating that he was involved with a group of bank robbers and was under investigation for it. • The applicants relied on the defence of public interest by directly applying the right to freedom of expression in terms of section 16 and stated that the common law should be developed to reflect the spirit purport and objects within the Bill of Rights. • Court held: • Under section 16 of the Constitution the media is both a rights bearer and has obligations under this right. • The media are the key agents to ensure that the government is open, responsive and accountable to the people as the founding provisions Constitution require. • The media not only has an entitlement to under this section, but an obligation as well by virtue of their station. The media’s duty to report accurately and fairly also means that it’s right under this provision requires them to promote an open and democratic society • The ability for people to participate in a democratic society is tied to the freedom of the media. Broadcasting • Section 192 of the Constitution provides that national legislation must establish an independent body to regulate broadcasting in the public interest and ensure fairness and diversity of views broadly representing South African society. • The current broadcasting authority is the Independent Communications Authority of South Africa [ICASA] • The reason for this is because were the state to have control over broadcasting, it would favour itself. • The telegraph agency of the Soviet Union was the authority in charge of tight soviet censorship and stated its own state agenda and used it to mobilize its own ideology. Freedom to Receive and Impart information • Section 16(1)(b) provides for the right to receive and impart information • This right protects speakers and listeners • The right to receive information overlaps with section 32 which is the right to access to information. • It also overlaps with section 16(1)(c) the right to artistic creativity • Question • Does the right to be speak and be heard, also include the right to be understood? Freedom and artistic Creativity • Section 16(1)(c) provides for the guarantee of protection of artistic creativity • This right encompasses a broad array of expressions that often go under discussed in legal circles • Sometimes social commentary emerges through artistic creativity, and the interpretation of art and artistic expressions is often not in the control of those who utter the expression • Therefore, some would argue that some artistic expressions should be censored on the basis that they do not fall within the category of protected speech and further implicate other rights. • The quality of the artistic creativity is not a pre-requisite for protection. • So bad paintings • Bad music and so forth are protected • What about bad humour? • A dad joke has protection under this section • BUT • Do jokes about sensitive topics like race, sexual violence and war have protection? • Are cartoons that are defamatory protected under this section? • Can you think of music that would not be protected under this section? • NWA – F*ck the police Academic Freedom and Freedom of Scientific Research • Section 16(1)(d) provides for the guarantee of academic freedom and scientific research • This essentially encompasses the right to research, publish and disseminate those works (usually of an academic kind) without government interference • The right obviously vests in academics and scientists in various fields. • This right also guarantees institutional autonomy of Universities as places where knowledge and information are produced and disseminated. • However, it does not solely vest in academics in this regard as well • In Print Media South Africa v Minister of Home Affairs and Another • The films and publications act had made an amendment that required publications to submit content containing sexual conduct for prior classification before publication. • The Court found that such a requirement infringed on the right to freedom of expression and was not justifiable in an open and democratic society. Free Speech in Legislatures • Freedom of expression also includes the right to free speech in legislatures. • This operates differently and should not be seen as free speech in terms of section 16 • Free speech in this context refers to ‘Parliamentary Privilege’ as encapsulated in terms of section 58(1) • In terms of the section members of parliament (also ministers) are not liable [criminally or in civil proceedings] for anything they may say in parliament • However, this speech is subject to the rules of parliament and orders of the speaker • In practice this means that members of parliament cannot be held liable for defamation • So it is not uncommon for members of the National Assembly to often say defamatory things about their colleagues in the legislature during proceedings. • BUT this privilege only extends to parliamentary proceedings Speech that is NOT protected • In terms of section 16(2) • The guarantees to free speech do not extend to: • Propaganda for war • This one is a lot easier said, that done. • Would asking the President to stand in solidarity or condemn one party to a war amount to this? • Most likely • Incitement of imminent violence • This usually shows up in criminal law and incitement in this instance is regulated in terms of the Riotous Assemblies Act • The advocacy of hatred on the basis of gender, race, religion, ethnicity and that which constitutes incitement to cause harm [the hate speech clause] • The harm can be physical or psychological - Freedom Front v South African Human Rights Commission • The advocacy for hatred cannot be directed at individual characteristics, rather group characteristics • The hatred should be real and significant and not amount to mere disapproval or mere criticism • Is this perfect? The Promotion of Equality and Elimination of Unfair Discrimination Act 4 of 2000 [PEPUDA] • PEPUDA is Constitutionally mandated legislation enacted to give effect to section 9(4) of the Constitution. • Section 10 and Section 12 is relevant in the context of Hate Speech • Section 10 of the Act regulates the prohibition of hate speech. Under the act for speech to qualify as hate speech it must: • A person must publish, propagate, advocate or communicate words • This is only limited to words and does not include cartoons and images (but we’ll see case law that argues otherwise) • The words must be on one of the prohibited grounds • Race, gender, sex, ethnicity, social origin etc. • A reasonable person must construe the speech as demonstrating a clear intention to be harmful, hurtful, incite harm or promote or propagate hatred • Actual intention of the speaker is not required • The context in which the statement is made needs to be assessed (the – what do you mean by that – test) • Speech must not fall within the ambit of the exclusion provided for in section 12 of PEPUDA • A bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 (think Nandos ads) Limitation – Section 36 • The right may be limited in terms of the limitation clause [section 36 of the Constitution] • Even expressions not excluded in terms of section 16(2) or PEPUDA can be limited in terms of section 36 of the constitution through a variety of avenues • Child pornography • Regulatory bodies publication standards • Broadcasting Commission of South Africa • South African Press Code • Films and Publications Board • These limitations are justified on the basis that these rights are removed from the core values underpinning than the right to freedom of expression. Questions that persist • The laws are not as good as they could be • The application of these laws have a bunch of double standards • Display of the old South African Flag is regarded as hate speech on the grounds of its history of colonialism, racism and an exclusionary legacy – Afriforum v Nelson Mandela Foundation • However why is the display of the Union Jack [flag of Great Britain/United Kingdom] not treated the same way? • In the age of the fourth industrial revolution where AI generated information and algorithmic entertainment mediums drive discourse, how do these laws compare in curbing what they claim to curb? • How do these laws hold up to conspiracy theories such as: • Q – Anon • Flat Earth • Hoteps • Replacement theory • The Manosphere – Andrew Tate and other similar ‘High value male content’ • These laws have their origins trying to curb the negative consequences that hate speech caused that led to manufacturing consent for the holocaust. • However, fascism’s primary outlet is using nationalistic speech that manufactures consent for atrocity • Think Operation Dudula • Think Moussolini and the Fascists By simply existing you make the world a better place