The foundations of freedom

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 this than with Article 19 of the International Covenant on Civil and Political Rights:

    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.

It goes on to state that the exercise of these rights “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— or of public health or morals.”

I should emphasise that here expression’s “restrictions” are those “provided by law” and “necessary”. The ambit for restrictions in the covenant is therefore quite limited.

Listen to the keynote address by former Constitutional Court Judge Kate O’Regan, delivered at a conference interrogating the rights and responsibilities of African media at Wits Journalism on Wednesday March 09 2011.
Why do we protect freedom of expression?
The Chief Justice of Canada, Beverly McLachlin, in a seminal recent judgment, Grant v Torstar Corporation 2009, answered the question crisply. 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 realisation”. 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 California in 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— [T]hey 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 the democratic functions of freedom of expression, as the Constitutional Court of South Africa stated in one of its first judgments on freedom of speech (Khumalo and Others v Holomisa). 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-actualisation
A second important rationale for freedom of expression is the individual interest people have in being able to express themselves and to listen or observe the expression of others. This is easily evident in arts and culture. Artistic expression clearly carries great individual importance, which we value and should not easily be suppressed by the state.

But it is important not only in relation to artistic expression. Freedom of expression enables individuals to form and share opinions and thus enhances human dignity, autonomy and, indeed, democracy. Recognising this role in asserting the moral autonomy of individuals shows the close links between freedom of expression and other rights such as human dignity, privacy and liberty.

(c) The pursuit of truth
This rationale has a long pedigree, associated with the writing of John Stuart Mill, who argued against the suppression of free speech because it would imperil the pursuit of truth. This view has been debated extensively. A version of it was 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”.

Understanding the rationales for the protection of freedom of expression is important -it is only when we grasp why we protect it that we understand when we might legitimately limit free speech.

Rights and reputation of others
By permitting restrictions to protect reputation Article 19 recognises that speech is often harmful. In modern rights talk, the relevant rights are dignity and privacy.

Human dignity and reputation
The first fundamental right often affected by speech is human dignity, which underlies most, if not all, rights. The Universal Declaration of Human Rights states in its Preamble that “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 about an individual’s sense of self-worth but is an affirmation of the equal worth of all human beings: the intrinsic worth of all people, as well as the individual reputation of each person as built upon his or her individual achievements.

Publication of harmful facts about people often impairs their reputation and dignity. When is it permissible? This is fundamentally the question answered by defamation or libel law.

Privacy can also be impaired by free speech. How is the right to privacy to be weighed against speech? There are, in my view, two reasons why we protect privacy. The first recognises 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 foster intimate human relationships and live our daily lives, pursue our own interests in our own ways. Although often mundane, this makes human life meaningful.

The Constitutional Court has held that privacy interests become more intense the closer one comes to the intimate details of someone’s life. To use a simple analogy: the home is closer to the core of privacy than the workplace; the bedroom is more inviolate than the front porch. The closer to this core we come, the stronger must be the reason to publish.

The second reason we protect privacy relates to the state. Many privacy clauses expressly mention protection of the home and personal correspondence—a constraint on the power of the state. It may not without good reason invade that right.

The law of defamation
I want now to look at the way 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. It seems to me that any system of regulation of the press in jurisdictions where speech is recognised as a fundamental right will have to grapple with the same issues in this emerging jurisprudence.

As in many other jurisdictions, the South African law of defamation has had an interesting ride in the past 30 years. Yet the emerging resolution of the tension between speech and the rights of dignity, privacy and reputation reflects, I hope, a maturing understanding of the importance of these rights 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. This means that the person who published the statement needs to prove that he or she did not act wrongfully or intentionally. The original defences for rebutting wrongfulness require a defendant to show that the statement was true and in the public benefit, or that it constituted fair comment, or that it was made on a privileged occasion.

The difficulty with the “truth in the public benefit” defence, of course, is that often it is not possible to prove the relevant facts were true, yet often it was nevertheless in the public interest that they be published. Around the world this has led to a further defence to defamation, variously called the defence of responsible communication, 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, among others, 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 this defence. The first is public interest. The second is that, even if it is not possible to prove the truth of the facts, good journalistic practice has been followed and it was responsible and/or reasonable to publish them.

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

Second, it is clear that issues relevant to politics and government will be in the public interest. As Judge Carole 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 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 free speech is of paramount importance. Anything 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 individualised purpose of speech—enabling citizens to make good decisions.

Some jurisdictions set the limits of public interest here and there are coherent reasons of principle to do so. But, in my personal view, that may well be too narrow. The public interest 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? This aspect of the defence has caused the greatest debate. Interestingly, I understand a Bill seeking to codify the law of libel is about to be introduced by the coalition government of the United Kingdom following the tabling in the House of Lords of a private member’s Bill by Lord Anthony Lester, an eminent barrister and civil libertarian whose earlier forays into lawmaking include seminal human rights legislation such as the Human Rights Act, the Equality Act, the Forced Marriages Act and the Civil Partnerships Act in the UK.

Lester’s draft libel Bill sets out eight considerations relevant to determining responsible publication. They include the nature of the publication and its content, the seriousness of the harmful allegations, 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 Shikongo). It seems to me that basing the element of responsible 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 to fit neatly with the “responsibilities” in Article 19.

It is worth adding remarks made in the same Namibian judgment: “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.”

Problems with defamation law
There are three areas of defamation law that have caused concern globally: excessive damages award (not such a problem in Africa, but a great concern elsewhere), the time 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. But it seems improbable that defamation cases can be resolved without oral evidence—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, which 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 rich source of jurisprudence in our country. Any new procedure would need to comply with it.

In conclusion, I should like to add that democracies are noisy places where deep conflicts are audible. Indeed, this is so because of freedom of expression. Amid 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. It needs to be conscientious and scrupulous in exercising that freedom fairly and to be fierce in defending it against improper diminution.



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