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Judge Kate O’Regan’s speech delivered at the Media Regulation Workshop 9-10 March 2011 in Jhb
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Judge Kate O’Regan’s speech delivered at the Media Regulation Workshop 9-10 March 2011 in Jhb

“Speech and responsibility: Guidance from Article 19 of the International Convention on Civil and Political Rights”

Text of the keynote address
“Regulations and Rights:  A conference on the roles and responsibilities of Africa’s media”
University of the Witwatersrand
March 9, 2009

Kate O’Regan
Judge of the Constitutional Court of South Africa
(1994 – 2009)

Thank you very much for the invitation to address this conference.  What is to be discussed is of great importance, not only here in South Africa but throughout our continent: the role and responsibility of the media.

No discussion of the role and responsibility of the media can commence without acknowledging the overarching importance of freedom of expression. And there is no better place to approach both freedom of expression and the responsibilities associated with it than with Article 19 of the International Covenant on Civil and Political Rights,which provides that:
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

Pertinently for the purposes of this conference, it goes on to state that:
“3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”
The terms of article 19 are echoed,though often in quite different formulations, in many conventions and constitutions. On our continent, it is to be found in article 9 of the African Charter of Human and People’s Rights as well as inmany national Constitutions including, for example, in articles 33 and 34 of the new Kenyan Constitution of 2010, article 21(1)(a) of the Namibian Constitution and section 16 of the South African Constitution.
So the right to freedom of expression as guaranteed in article 19 is nearly universally acknowledged. But article 19 also expressly acknowledges that the right of freedom of expression carries with it “special duties and responsibilities” and goes on to state that the right may be restricted by law as far as is necessary to respect the rights and reputation of others and to protect national security or public order, public health or morals.
I should pause for a moment and emphasise that article 19 provides that expression may only be subjected to “restrictions” that are “provided by law” and “necessary” to (a) respect the rights and reputations of others; and (b) to protect national security, public order, public health and morals”.  The ambit for restrictions within the scope of the Covenant is therefore quite limited.

So at the heart of the entrenchment of the right to freedom of expression in international law lies the recognition that the right imposes duties and responsibilities on those who exercise the right.  And the focus of this conference is how those responsibilities should best be regulated.

In thinking how best to prepare the ground for the work of this conference, it seemed to me that it would be useful to start with article 19: it is the seminal guarantee of freedom of expression and it contains the recognition that the exercise of freedom of expression imposes duties and responsibilities though in a very circumscribed ambit.

To gain a full understanding of Article 19, we needfirst to analysewhy freedom of expression is important in modern societies and then consider the two areas where article 19 provides that it may be necessary to have restrictions on the right: that is the protection of the rights and reputation of others; and the protection of national security, public order, public health and morals. For a variety of reasons, particularly constraints of time, I am going to focus on the first class of restrictions contained in article 19 – the protection of the rights and reputation of others.

Why do we protect freedom of expression?

There is not only one rationale for the protection of speech. And time this morning requires me to be brief and to avoid an examination of the voluminous philosophical and legal writing on the topic. I cannot be more succinct than the Chief Justice of Canada, Beverly McLachlin, who in paragraph 1 of a recent seminal judgment, Grant v Torstar Corporation 2009 SCC 61, McLachlin CJ answered the question crisply as follows.  “[Freedom of expression],she said, is essential to the functioning of our democracy, to seeking the truth in diverse fields of inquiry, and to our capacity for self-expression and individual realization.”  She captured in this short sentence, the three rationales that philosophers, political scientists and judges have proposed—in most cases far more long windedly.

(a) Functional to Democracy
The first rationale for free speech – its role in strengthening democracy – has rarely been more movingly captured than by Brandeis J in his separate concurring judgment in Whitney v California274 US 357in 1927:
“Those who won our independence … believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. …. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form. Recognising the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”

The mass media have a particularly important role in relation to the democratic functions of freedom of expression, as the Constitutional Court of South Africa stated in one of its first judgments dealing with freedom of speech (Khumalo and Others v Holomisa2002 (5) SA 401 (CC) at para 24). For the mass media “bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility. The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society. If the media are scrupulous and reliable in the performance of their constitutional obligations, they will invigorate and strengthen our fledgling democracy. If they vacillate in the performance of their duties, the constitutional goals will be imperilled. The Constitution thus asserts and protects the media in the performance of their obligations to the broader society, principally through the provisions of section 16.”

(b) Human dignity and self actualization
A second and important rationale for freedom of expression relates to the individual interest that people have being able to express themselves and to listen or observe the expression of others. This rationale is easily evident in relation to arts and culture.  Artistic expression clearly carries great individual importance that we value and that should not easily be suppressed by the state.
But it is important not only in relation to artistic and creative expression. Freedom of expression enables individuals to form and share opinions and thus enhances human dignity,autonomy and, indeed, democracy.Recognising the role of freedom of expression in asserting the moral autonomy of individuals demonstrates the close links between freedom of expression and other rights such as human dignity, privacy and liberty. As Scanlon described in his seminal essay on freedom of expression, an autonomous person –

“. . . cannot accept without independent consideration the judgment of others as to what he should believe or what he should do. He may rely on the judgment of others, but when he does so he must be prepared to advance independent reasons for thinking their judgment likely to be correct, and to weigh the evidential value of their opinion against contrary evidence.” (Scanlon “A Theory of Freedom of Expression” (1972) 1 Philosophy and Public Affairs 204 at 216.)
(c) The Discovery of Truth or the Pursuit of Knowledge

This rationale for the protection of speech has a long pedigree and is closely associated with the writing of John Stuart Mill who argued against the suppression of speech on the grounds that it would imperil the pursuit of truth.  The proposition has been debated extensively in the philosophical literature. A version of it was famously asserted by Holmes J in his famous dissenting judgment in Abrams v US 250 US 616 (1919) in which he stated that “the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought itself to get itself accepted in the competition of the market”. 

Understanding the rationale for the protection of freedom of expression is important because it is only when we grasp why we protect expression that it becomes possible to understand when we might legitimately limit the right to free speech.

Article 19’s first permissible restriction on speech (the rights and reputation of others)

By permitting restrictions on speech to protect reputation, article 19 recognises perhaps that the old playground retort “sticks and stones can break my bones, but words will never hurt me” is just not true. Speech is often harmful.  Article 19 recognises this but stipulates that freedom of expression may be limited where necessary to protect rights and reputation. In modern rights talk, the relevant rights are of course, dignity and privacy.  And I turn now to consider each briefly.

Human Dignity and reputation
The first fundamental right often affected by speech is human dignity. Human dignity underlies most, if not all, rights. As the Universal Declaration of Human Rights in its Preamble states: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world…”.
Human dignity is not only concerned with an individual’s sense of self-worth, but constitutes an affirmation of the equal worth of human beings in our society. So it includes the intrinsic worth of human beings that is shared by all people as well as the individual reputation of each person built upon his or her own individual achievements. The value of human dignity therefore values both the personal sense of self-worth as well as the public’s estimation of the worth or value of an individual.

Publication of harmful facts about people often impairs their reputation and dignity.  The question is when is it permissible? This is fundamentally the question answered by defamation law, or libel law.  The law of defamation in South Africa is based directly on the Roman actioinjuriarum and not on the common law of libel, yet there are distinct similarities in the approach taken to determining when an action will lie for injury to reputation, a matter to which I turn in a moment.

Privacy
Privacy is another right that is often impaired by speech.  The right to privacy is to be found in article 17 of the International Covenant on Civil and Political Rights (No one shall be subjected to arbitrary or interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation). To understand how privacy is to be weighed against speech it is necessary to give a purpose and meaning to the right to privacy.

There are, in my view, two reasons why we protect privacy: the first relates again to recognizing that, although we all live in communities, we are entitled to a personal sphere from which we may and do exclude that community. In that personal sphere, we often establish and foster intimate human relationships and live our daily lives. This sphere in which to pursue our own ends and interests in our own ways, although often mundane, is intensely important to what makes human life meaningful.By protecting a right to privacy we recognize that society needs to enable human beings to choose how to live their lives within the overall framework of a broader community. 

This reason for protecting privacy not only affords all of us rights to privacy but also imposes obligations upon all of us to respect the privacy of others.  The South African Constitutional Court has held that privacy interests become more intense the closer one comes to the intimate and personal details of someone’s life. To use a simple set of analogies: the home is closer to the core of privacy than the workplace; the bedroom is more inviolate than the front porch. The closer to the core of privacy the stronger must be the reason to permit publication.

The second reason we protect privacyrelates particularly to the role of the state. Many privacy clauses (the ICCPR, for example, and the ECHR) expressly mention protection of the home and personal correspondence.  We protect privacy to create an express constraint on the power of the state. The state may not without good reason invade that right. This reason for protecting privacy, is of course, of less direct relevance to freedom of expression.

In South Africa, privacy is protected under the actioinjuriarum as well and jurisprudentially it is not particularly difficult. Of course, in many common law countries such as the United Kingdom, an action for breach of privacy has been a late development, largely inspired by article 8 of the European Convention on Human Rights.

The law of defamation
I want to turn now to look at the way in which the first permissible restriction under article 19 has been dealt with in the law.  In most legal systems, this restriction on freedom of expression is regulated through the law of libel or defamation where the interests of expression on the one hand are balanced against the interests of speech.  This is an area where constitutional rights drive into the heart of private law.  Moreover, it is an area of private law, which in many systems is almost entirely developed by judges. 

In this regard, it is interesting to note that it is likely that in England and Wales, the home of judge-made common law, a new libel statute is being promised. I understand the coalition government will introduce a draft bill next week on this. I shall return to this in a moment.  This promise was made by Nick Clegg in January following upon the tabling in the House of Lords of a private member’s bill seeking to codify the law of libel.  The bill was tabled by Lord Anthony Lester, an eminent barrister and civil libertarian whose earlier forays into law making include seminal human rights legislation in the United Kingdom such as the Human Rights Act, the Equality Act, the Forced Marriages Act and the Civil Partnerships Act.  Lord Lester’s draft bill is available on the internet on the Index Against Censorship website, amongst other places.

The law of defamation is particularly important, because although it is private law, and generally judge-made, it is the area of law where the balance sought by article 19 between speech, on the one hand, and rights and reputation on the other, has been forged by judges in democracies all over the world.  It seems to me that any system of regulation of the press that may be established in jurisdictions where speech is recognized as a fundamental right will have to grapple with the same questions and indeed with the answers given in this emerging jurisprudence.

Interestingly too, the area of defamation or libel law has, in the last few decades, seen an increasingly internationalized conversation amongst judges on the way in which the rights of expression, on the one hand, and reputation, dignity and privacy on the other should be balanced.
As a result, the room for deeply divergent answers is narrowing as a growing international consensus emerges on how the balance sought by article 19 must be struck.

Like in many other jurisdictions, the South African law of defamation has had an interesting ride over the last thirty years.  Again time does not permit an elaboration of this. But a consideration of the development of the law in this area exposes the dramatic political history of these last decades.  The emerging resolution of the tension between speech and rights of dignity, privacy and reputation reflects, I hope, a maturing understanding of the importance of the rights concerned, and the role of the media in our broader society.

Simply put,for a plaintiff to succeed in a defamation action in South Africa, he or she must establish that the defendant published a defamatory statement concerning the plaintiff. A rebuttable presumption then arises that the publication of the statement was both wrongful and intentional (animoinjuriandi).  This means that the person who published the statement needs to prove that he or she did not act wrongfully or intentionally.  Rebutting wrongfulness originally could be done by showing that the statement was true and that it was in the public benefit for it to be made; or that the statement constituted fair comment; or that the statement was made on a privileged occasion.It is here, in the area of defences, that the similarities between the South African law of defamation and the law of libel become apparent.

The difficulty with the truth in the public benefit defence, of course, was that often it was not possible to prove the relevant facts were true yet often it was nevertheless in the public interest that the relevant facts be published.  This has led around the world to the development of a further defence to defamation that is variously called the defence of responsible communication, or the defence of reasonable publication or the public interest defence.  At the heart of this defence, now established as the law in Canada, the United Kingdom, South Africa and Namibia, to name just a few jurisdictions, is the principle that freedom of expression permits the publication of facts that cannot be proved to be true but in which nevertheless it can be shown that there is a public interest in their being published.

There are two key elements to the defence: the first is that the publication of the facts is in the public interest; and the second is that even though it is not possible to prove the truth of the facts, good journalistic practice has been followed so it can be shown that it can be responsible and/or reasonable to publish them.

What is in the public interest? There is no easy answer to this question. Two clear things can be said: first, what is in the public interest is not the same as asking what the public is interested in.  Members of the public may be interested in every salacious detail of every private individual’s life, as the persistent popularity of reality TV shows seems to suggest, but in the absence of consent to publication, that will not mean that the details are in the public interest, sufficient to over run a privacy interest asserted by a private individual. In determining public interest in this way we can see the balance that is to be struck between free speech and privacy.

Second, is clear that issues relevant to politics and government will be in the public interest. As Judge Lewis said in a judgment in the Supreme Court of Appeal:
“Freedom of expression in political discourse is necessary to hold members of Government accountable to the public. And some latitude must be allowed in order to allow robust and frank comment in the interest of keeping members of society informed about what Government does. Errors of fact should be tolerated, provided that statements are published justifiably and reasonably.”

Here the democratic function of speech is of paramount importance and anything that is relevant to the citizen’s right to know how government is being conducted is likely to be in the public interest. Informing this decision too will be the individualized purpose of speech, which sees speech as enabling citizens to make good decisions.

Some jurisdictions set the limits of “public interest” here, and doing so, is certainly based on some coherent reasons of principle to do so. But in my personal view, that is probably too narrow an ambit.  And indeed that is the approach asserted by the Canadian Supreme Court in therecent Torstar case. The public interest probably also extends to the arts, sciences, business and the economy as well as matters of environmental and social concern.

What constitutes responsible or reasonable publication? It is this aspect of the defence that has caused the greatest debate.  Interestingly, Lord Lester’s draft libel bill sets out eight considerations relevant to determining responsible publication. These considerations include: the nature of the publication and its content, the seriousness of the harmful allegations against the plaintiff, what steps were taken to verify the facts prior to publication, whether the plaintiff was given an opportunity to comment prior to publication, and whether the journalist concerned complied with professional codes of conduct.

The latter three considerations were also taken into account in a recent judgment of the Namibian Supreme Court in which I participated (Trustco Group International Ltd and Others v Shikongo2010 NASC 6 cited at http://www.saflii.org/na/cases/NASC/2010/6.pdf) It seems to me that basing the element of responsible or reasonable reporting on compliance with ethical codes and guidelines set by journalists themselves will be both principled and useful in providing clarity to citizens and journalists as to what is expected of journalists before they publish a story. It also seems to me fit to neatly with the “responsibilities” contemplated by article 19.

It is worth adding remarks made in the same Namibian judgment recently: “Courts should not hold journalists to a standard of perfection. Judges must take account of the pressured circumstances in which journalists work and not expect more than is reasonable of them. At the same time, courts must not be too willing to forgive manifest breaches of good journalistic practice. Good practice enhances the quality and accuracy of reporting, as well as protecting the legitimate interests of those who are the subject matter of reporting. There is no constitutional interest in poor quality or inaccurate reporting so codes of ethics that promote accuracy affirm the right to freedom of speech and freedom of the media. They also serve to protect the legitimate interests of those who are the subject of reports.”

I would finally like to make a few comments about the defence of fair comment. Again it is interesting to note that in the draft libel bill tabled by Lord Lester in the UK House of Lords, the proposal is to replace the defence of “fair comment” with a defence of “honest opinion”.  The defence,somewhat unusually formulated in the draft, will be established if the publication is on a matter of public interest, and it is clear to a reasonably person that the statement complained of, is a statement of opinion on the matter of public interest and that opinion is one that a reasonably person could honestly hold. 

Problems with the law of defamation

There are three areas of the law of defamation that have caused concern globally: excessive damages award (not such a problem in Africa, but a great concern in other jurisdictions); the time that it takes to prosecute a defamation claim (often several years) and excessive legal costs. Like other forms of civil litigation, defamation cases are expensive and long-winded both for the plaintiff and the defendant.  Indeed the exorbitant costs involved in libel cases is another issue that may be taken up in the draft bill in the United Kingdom. But it seems improbable that defamation cases can be resolved without oral evidence which is one of the factors which causes delays and hikes up costs.

Establishing a different mechanism to determine liability for defamation would have to comply, at least in South Africa, with section 34 of the Constitution that affords the right of access to courts. Section 34 provides that:
“everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or where appropriate, another independent and impartial tribunal or forum.” 
This section has been a surprisingly rich source of jurisprudence in our country.  And any new procedure would need to comply with it.

Conclusion
I have tried in this short introduction to show

1.That the question of the responsible exercise of the right of freedom of speech has informed the right at least since its formulation in the ICCPR.  There is nothing inherently alarming about insisting on responsible exercise of the freedom of speech.
2.  That the restrictions contemplated by the ICCPR are narrow.  It only contemplates restrictions that are necessary for the protection of other rights.
3. Determining what is necessary requires an exercise in practical reasoning that weighs the importance of free speech in the context of the speech itself against the relevant countervailing rights.  Courts have performed this task in jurisdictions all over the world, at least in relation to reputation and there is a growing consensus as to how that balance can best be struck. 
4. Journalistic codes of conduct have an important role to play in determining the appropriate balance and ensuring that journalists act ethically.They will be taken into account by courts determining the defence of responsible publication.
5. It is universally accepted that freedom of expression is at its strongest in the sphere of politics.  Democracy demands the close scrutiny of those who exercise public power in the interest of the broader society. Demands for restrictions on speech are rightly at their weakest in the area of politics.
6. Freedom of speech is at its weakest in relation to the intimate sphere of life of private people—people whom the public cannot claim a right to know of their private relationships or the way in which they conduct their private life.

Finally, I should like to add that democracies are noisy places where deep conflicts are audible. Indeed, this is so because of freedom of expression.  In the midst of the noise, and as a key participant in the democratic process, the press, like all institutions, needs continually to reflect upon its own role and responsibilities.  It needs to be honest in acknowledging that it wields power at least in part because of the right of freedom of expression, to be conscientious and scrupulous in exercising that freedom fairly and to be fierce in defending that freedom against attempts at improper diminution of that freedom.  The two days ahead will give you an opportunity of reflection and debate – an opportunity that I am sure will be of great value.

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