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Media Freedom Day: 19 October 2012 Speech by media law expert Dario Milo

Press Freedom Day: 19 October 2012
Speech at event organised by Sanef, IAJ and Wits journalism
Dario Milo, partner at Webber Wentzel attorneys and visiting associate professor, Wits University


I am honoured to have been asked to talk about the state of media freedom on this important occasion, as we commemorate the 35th anniversary of Black Wednesday, the 19th of October 1977.  As you will recall, this date was about a month after the murder in detention of Steve Biko, when as part of a brutal apartheid government crackdown, three newspapers including The World were banned [the others being the Weekend World and Pro Veritate] and their editors detained under the repugnant Internal Security Act (of 1950). The state president issued a proclamation under the Act prohibiting the “printing, publication or dissemination”, apparently being satisfied that the newspapers, and I’m quoting from part of the section under which the bannings took place, “serves as a means for expressing views or conveying information the publication of which is calculated to endanger the security of the State or the maintenance of public order”.
As Harvey Tyson, former editor of The Star, states of this event in his book, Editors Under Fire:
“The end of The World has a special meaning for journalists in South Africa. When the newspaper named The World was shut down by the government, press freedom finally died in this country. Although closure of the World could not stop the editors and journalists, and those in other newspapers, from stating their opinions and reporting many facts which the authorities wanted suppressed, we knew that from the moment they came to take [the editor] Percy Qoboza away no newspaper was safe in South Africa. The courts could no longer protect us.”
With the demise of apartheid and the advent of our constitutional democracy, we are happily now in a position where our courts frequently are called upon to protect the media, and they do so using the weaponry of section 16(1) of the Constitution, which protects freedom of expression and also freedom of the press and other media.  This weapon would have dealt a fatal blow to the so-called justification for the newspaper ban put up by the apartheid government:  The Minister of Justice and the Police, the despised Jimmy Kruger, was reported to have said that the ban was justified because “the [government’s] factual investigation has shown beyond doubt that [the newspapers] were endangering law and order”.

And so what I want to mainly talk about today is a narrative of media freedom in 2012 where the story is that of the courts handing down bold rulings which protect media freedom – and here I will focus especially on decisions handed down in the last 2 years.  These decisions have protected the media in important pockets of media law, including defamation, source protection, and open justice.  I don’t want to suggest that the courts in our constitutional democracy have always championed media freedom and always got it right.  In fact, until very recently, the Constitutional Court has in my view had a fairly bad track record on media freedom. But by and large, our courts have given the media the breathing space the Constitution requires in order for them to carry on their functions as watchdogs and bloodhounds.
There is, however, a competing story to be told about media freedom in 2012, which I must also speak briefly about, and on which I know Raymond Louw will have more to say, and it is that media freedom still faces disturbing threats from various sources.  I will speak only of two recent threats in particular, again focusing on the last two years:
First, the use by the executive of apartheid-era legislation to draw a veil of secrecy on matters of public interest, and here I will focus specifically on Nkandlagate.
Secondly, the use of criminal laws to chill freedom of expression, perhaps best exemplified in the draft legislation officially called the Protection of State Information Bill, but surely better known by its alias, the Secrecy Bill.


Before I continue I need to make a few preliminary points.
First, the perspective I offer is grounded in my experience as a media lawyer and so I issue a disclaimer upfront, as any lawyer worth their salt should, that my take on these issues is a narrow one, necessarily steeped in law.
Second, I don’t want to be misunderstood as suggesting that media freedom is absolute: like all other rights, it is of course constitutionally sound to limit media freedom if the limitation is reasonable and justifiable.  That is why, to give obvious examples, the media have no difficulty with rules about not identifying minors involved in crimes, or victims of sexual crimes.
The third preliminary point I make is that although we will speak a lot today of “media freedom”, in fact media freedom is no more and no less than the right of the public to receive information and ideas in order to participate in our democracy. The media’s role is that of the eyes and ears of the public.  It derives its claim to constitutional entitlement from the right of the public to know.  And so a claim to media freedom is really a claim asserted on behalf of the public.
And finally, just as the media has freedom it also has responsibility and must be accountable.  Like all those who exercise power, whether the source of that power be private or public, the media must exercise its rights responsibly and with due regard to other competing rights and values.  Media freedom should never be employed as an excuse for shoddy and negligent reporting.
I think the Constitutional Court has crisply summarised much of what I am saying here in its decision in Khumalo v Holomisa in 2002:
The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society …  The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate … The media must rely on freedom of expression and must foster it.  In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression.
Against that background, I start with the good – recent court decisions setting precedents for media freedom- and I end with the bad – the threats to that freedom that I have identified.

When you examine the media freedom jurisprudence of our courts in recent years, what is striking is how far we have come in quite a short space of time.
I’ll start with the law of defamation, which remains one of the most significant restrictions on what may be published.  In the last two years we have seen three major developments which are profoundly protective of the media:
First, the Constitutional Court reinvigorated the defence of honest or fair comment in the case of The Citizen v McBride.  Even though the court described some of The Citizen’s commentary on whether Robert McBride was fit for public office as “vengeful and distasteful”, the court confirmed that criticism is protected “even if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly held opinion, without malice, on a matter of public interest on facts that are true”.  This entitled the newspaper to complain about McBride even in terms that were “abrasive, challenging and confrontational”.
The second major advance I want to mention in the law defamation in recent years has been the approach the courts have adopted to prior restraints, or interdicts to stifle publication.  Last year, the City Press succeeded in the South Gauteng High Court in opposing an interdict brought by Julius Malema concerning payments into his now notorious Ratanang trust, allegedly to compensate him for facilitating tenders.
But the more important case on prior restraints is now the Constitutional Court’s decision handed down just three weeks ago today in Print Media SA and SANEF v Minister of Home Affairs.  That case was not about defamation but concerned prior restraint on publications containing certain forms of sexual conduct – under the Films and Publications Act, these types of publications would have to be submitted for classification before they could be published.  But the ripple effects of this judgement will extend far beyond the facts of the case.
This is because, as I’ve written about the case, the Court effectively adopted an approach to free speech of “publish and be damned”, rather than the prior restraint approach taken by the Films and Publications Act, which severely undermined freedom of expression.  Justice Skweyiya for the Court endorsed the English law principle that “prior restraint on publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be awarded where there is a substantial risk of grave injustice”.
It seems to me that as a result of this case, interdicts such as those which were granted against the Mail & Guardian in the Oilgate saga, and against the publication of the controversial Prophet Mohamed cartoon in the Sunday Times, should now be regarded as aberrations.
The third defamation decision which I want to celebrate today is an aspect of the Supreme Court of Appeal’s ruling in Media 24 v SA Taxi.  This case clarified that where a plaintiff sues for what lawyers call special damages as a result of a defamatory publication, additional requirements must be met.

Special damages, for the uninitiated, are patrimonial losses such as loss of profits.  The prospect of being sued by, say, a multinational, for millions in loss of profits must surely create a chilling effect on freedom of expression, particularly for financial journalists.
What the court confirmed in the SA Taxi case is that if you want to sue for these kind of damages, you have to prove that the publication was false and you probably have to even go further and prove knowledge by the publisher of falsity.  So after this case, a Reeva Forman would today have to prove that Style magazine published false allegations knowing them to be false, and of course that the publication caused the loss of profits, before damages would be awarded.
The fascinating aspect of this development is that, in the context of suing for special damages, the SA Taxi case mirrors the requirements for public officials suing for defamation adopted by the US Supreme Court in its famous New York Times v Sullivan decision, a case widely regarded as the high water mark for freedom of expression, and one that our courts have steadfastly refused to adopt in other contexts.  The effect of the decision is journalists who act in good faith and are not reckless in their investigation need not fear bankrupting their employers and themselves in a claim for lost profits.  The SA Taxi decision radically ameliorates the tendency to self-censor for fear of being sued for ruinous amounts of damages.
So these three cases illustrate how our courts have intervened in crucial respects to cement an approach in defamation law which prioritises freedom of expression over reputation in certain contexts.
These developments are generally supportive of an approach in our defamation law which marks out protected territory to criticise public officials and others who wield public power.  Those in power should not readily turn to defamation or dignity law to seek to stifle criticism of their official conduct.

The best example of a person wielding power who his fond of using defamation and dignity laws is our very own President Zuma.  Between 2006 and 2010, the President instituted court action in 15 cases, suing eight newspapers, a radio station, two cartoonists, a columnist, op-ed writers, and journalists.  That’s an average of nearly four lawsuits a year.  And this year he sued the Goodman Gallery for alleged invasion of his dignity.  The vast majority of these cases are still pending, despite the president’s statement in his inauguration address in 2009 that “we must defend the freedom of the media”.  And the majority of the claims, which total over R50 million, are not about news stories that the president regards as inaccurate, but rather concern criticism of his conduct.
Although our president is apparently easily offended, our defamation law ought to discourage these kinds of claims by public officials.  The developments I have described above go a long way in this regard.
Source protection

The next area I want to highlight is the law concerning protection by journalists of their confidential sources.  As this is part of every journalist’s DNA, you may be surprised to hear that a decision of the South Gauteng High Court on Freedom Day this year, which allowed the Mail & Guardian to protect its sources in a defamation case, was the first case of its kind after our Constitution was adopted.
A company called Bosasa is suing the Mail & Guardian for alleging corruption in its relationship with the Department of Correctional Services.  As part of a preliminary skirmish, Bosasa claimed that it was entitled to unredacted documents which would have revealed confidential sources used by the newspaper in its story.
Although the court included in its judgment the usual, boiler plate language about how each case must be decided on its own facts, there can be no doubt that after this case, the protection of confidential sources in public interest stories must be regarded as the general rule, both in civil cases such as this one, and in criminal cases involving section 205 of the Criminal Procedure Act.
Judge Tsoka’s ruling should be music to the media’s ears: “It is essential that in carrying out this public duty for the public good, the identity of [the media’s] sources should not be revealed, particularly where information so revealed would not have been publicly known. This essential and critical role of the media is more pronounced in our nascent democracy, founded on openness, where corruption has become cancerous, and needs to be fostered rather than denuded.”
The judge felt so strongly that he was correct in his judgement that he even later denied Bosasa permission to appeal, and Bosasa has now petitioned the Supreme Court of Appeal for this permission.  Watch this space.  If the case does go on appeal, one hopes that the appeal courts will adopt the famous ruling of the European Court, that “protection of journalistic sources is one of the basic conditions for press freedom,” and rule once and for all that in appropriate circumstances, the media is entitled to source protection.

Open justice
The last area that I want to give attention to in the narrative of media freedom that I am sketching is the right to open justice. Again significant strides in favour of access to courts and tribunals have been made.
It is also in this area of our media law where courts have been challenged to accept that the days of print journalists taking notes at court for purposes of publishing a story the next day, at the earliest, are already rapidly declining.  Today’s court reporter tweets from court, offering a blow-by-blow account of the case, and then may post a story on the newspaper’s website a few times during the court day, or may regularly go on air to update the radio listener.
Indeed, court and tribunal proceedings are increasingly filmed and broadcast.
This trend is perhaps best exemplified by the Practice Manual which was adopted in the North Gauteng High Court from 1 July 2012, and which as a default position allows broadcasting by television or radio of any case in that court, simply by giving the registrar 24 hours’ notice.  This is an incredible innovation by the deputy judge president, Willem van der Merwe, and it applies to trial proceedings as well as applications.
Of course the Julius Malema Equality Court trial was broadcast live, and cameras were also allowed into the liquidation enquiry into the affairs of the Pamodzi gold mines which had been managed or mismanaged in liquidation by Aurora.  And more recently cameras were also allowed into the on-again, off-again disciplinary enquiry by the NDPP into senior prosecutor, Adv Glynis Breytenbach.
It was ground-breaking for the courts in the Aurora and Breytenbach cases to grant access to journalists to these enquiries in the first place (such access was unprecedented).

The first is a usually secret liquidation enquiry, and the second an internal disciplinary enquiry.  But the courts went even further than access, allowing, with some reporting restrictions, permission to broadcast.
Increasingly, if an enquiry concerns a matter of public interest and much of the information about the dispute has already reached the public domain, there is a strong argument for media access, whether that access takes the form of print journalists with their traditional or electronic notebooks, tweeting journalists with their mobile phones or tablets, or radio and television journalists with cameras and microphones.
I have come to the end of the nice narrative, and I hope I have persuaded you that our jurisprudence on media freedom is generally one of which we can be proud.  I must, however, now consider a few worrying threats to this solid foundation of media freedom.

The first threat I want to talk about is the use of apartheid era security legislation by members of the executive to stifle transparency and accountability.  The case in point is of course the revelation by the press that a cost of R250 million has been approved by the state for upgrades to Nkandla, President Zuma’s private home.  The Public Works Minister’s (Thulas Nxesi’s) response to the exposé was twofold: to call for the City Press which first broke the story to be investigated for the crime of unlawfully possessing a “top secret” document; and to refuse to answer questions about the Nkandla funding because it had been declared a “national key point” and no security details could therefore be released.
Both of these propositions required the minister to dust off apartheid – era legislation: the Protection of Information Act of 1982 and the National Key Points Act of 1980.  Well, the minister could not have chosen worse legislation to invoke.

When the National Key Points Act was introduced into parliament, the deputy minister of defence justified its draconian provisions as follows, according to the Hansard of 12 June 1980:
“In the light of the prediction relating to the escalation in the incidence of terrorist onslaughts, attention has been given for some time now to the improvement in streamlining of security measures. … At the moment the Republic of South Africa finds itself in the midst of an unconventional war which up to now has been of relatively low intensity. However it may be expected that in future the terrorist onslaughts will increase both in frequency and intensity”.
This is hardly the type of legislation I would want to be relying on if I were in the minister’s position.
In any event, the Act prohibits the furnishing of information “relating to security measures applicable at or in respect of a National Key Point” or “any incident that occurred there”.  Even this broad wording doesn’t seem to plausibly cover an explanation for the funding of Nkandla, and the sums involved.  No-one is asking for the secret plans to the Nkandla underground bunkers, we simply want to know why taxpayers’ money is being spent on the upgrade, how much is being spent, and what it is broadly being spent on.  This is information to which the public is entitled. The attempts to cloud the issue with the secrecy of the National Key Points Act are ill-conceived.

As for invoking the Protection of Information Act of 1982, the minister of public works need have looked no further than the speech of his colleague, the minister of state security Siyabonga Cwele, in introducing the Protection of State Information Bill into the National Assembly last November.  In that speech, Cwele recognised the major shortcomings of the 1982 legislation. As the minister said, the 1982 Act is an “apartheid law which must be set aside”.
This point leads me to the second threat to media freedom, and it flows from the first: the overzealous use of criminal laws to chill free speech.
We have already seen in the last two years the arrest on trumped up criminal charges, and the telephone interception by the Hawks, of the investigative journalist, Mzilikazi wa Afrika, after his exposé in the Sunday Times of the police headquarters lease scandal.
And this year we witnessed the editor of the Mail & Guardian, Nic Dawes, and investigative journalists Sam Sole and Stefaans Brummer, being investigated after criminal charges were laid by the president’s spokesperson, Mac Maharaj.
The charges relate to what Maharaj claims is a contravention of a provision in the National Prosecuting Authority Act which prohibits the disclosure of a transcript of evidence given by Maharaj and his wife at an NPA enquiry related to the arms deal in 2003.  And this in circumstances where the newspaper in fact went to great lengths not to disclose the transcript in its publication.
These types of threats of criminal prosecution will be exacerbated if the Protection of State Information Bill is passed into law in its present form.  It will be recalled that almost a year ago, the National Assembly by a majority of our MPs passed the Bill without either a public interest or a public domain defence.  The Bill is now before the National Council of Provinces.
Without a public interest defence, the City Press journalists who broke the Nkandla story would be facing jail time of up to 10 years for possessing and disclosing classified information, being the top secret memorandum revealing the substantial cost of the upgrade at taxpayers’ expense.

Without a public domain defence, all the journalists who repeated the revelations about Nkandla based on the classified information will similarly have committed offences; and so would I for making reference to it in my speech today.  We would all be facing potential prison terms of up to 5 years.
Under the Secrecy Bill, what the City Press should have done is clear: they should have returned the document to their nearest police station, or the State Security Agency, and, proponents of the Bill would say, they can always formally request that the document be declassified, and they can then publish.  What’s the big deal?  Ominously, this sounds very similar to the response given to the opposition in parliament in 1980, in the National Key Points Bill debate. In answer to an observation by Harry Schwarz of the official opposition, the Progressive Federal Party, that the Bill would prevent a newspaper from publishing even that inadequate steps in relation to security had been taken at a national key point, or that smoke was seen at a national key point, the answer from the apartheid government was that this concern had no merit: “What the newspaperman should do is go to the Minister and ask for his authority to publish that information”.

To be sure, the ad hoc committee of the National Council of Provinces appears to have made some very important improvements to the Bill, but the ruling party’s representatives have stopped short of including the crucial public interest and public domain defences.  Without these defences – which will not only inure to the benefit of the media but to all whistle-blowers exercising their patriotic duty – it is plain that the severe criminal sanctions the Bill contains will create a chilling effect on freedom of expression, which will impoverish our public discourse.

Now these two threats that I have spoken about today are clearly not the only threats to media freedom and the public’s right to know.  There are many others, and they vary from the possible investigation by parliament of a Media Appeals Tribunal which would regulate the print media, to rules of criminal procedure about publishing the identities of those accused of certain crimes.  And let us not forget the chilling effect that emanates from non-legal sources, such as the intimidation and bullying which was witnessed in the aftermath of The Spear saga.
But I take great solace in our courts, and so should you.  It is the courts, after all, who have the final say in matters of media freedom.  It is perhaps appropriate to end with the words of the Constitutional Court expressed just three weeks ago:
“In considering the comprehensive quality of the right [to freedom of expression] one also cannot neglect the vital role of a healthy press in the functioning of a democratic society.  One might even consider the press to be a public sentinel, and to the extent that laws encroach upon press freedom, so too do they deal a comparable blow to the public’s right to a healthy, unimpeded media”.
I thank you.