Taking a glance at developments covered in this column over the last three years, Toni Erling and Reggie Manyakara ask where freedom of expression stands in South Africa today. How do the events weigh up?
The recent media coverage of the SABC’s failure to broadcast the booing of our deputy president at a Woman’s Day rally raises questions about the extent to which South African media is entitled to express itself, and the manner in which it chooses to do so.
Although freedom of expression is constitutionally entrenched, a glance at the “legal spin” columns over the last three years provides some alarming examples suggesting the possibility that the right is slowly being whittled away. But, then again, some of the columns indicated quite the opposite – so where exactly does free expression in South Africa stand?
In June 2004 we wrote about the threatened eviction of journalists from the parliamentary buildings in Cape Town. At the time, reporters voiced their dismay at the loss of unhampered and informal interaction with parliamentarians in the very place where their key functions are performed. While the event might appear insignificant in hindsight, it did have an important influence over public perception -was this how government viewed the media?
Today the Convergence Bill (which we have yet to discuss in this column) contains provisions that should also make the public and the media very nervous. Not least of all is the fact that the Minister of Communications is given powers by the bill that were previously exercised by independent regulatory bodies (e.g. Icasa). Also, the bill requires the minister to approve each broadcaster’s licence conditions before the licence is granted.
On the other side, our courts have been pretty tolerant of the media’s flagrant violations of the law relating to pending criminal proceedings, such as in the reporting of the details surrounding Judge Desai’s arrest in India. According to the strict letter of the law, the media acted contrary to provisions relating to sexual cases in the Criminal Procedure Act. Similarly, the conduct of You magazine in relation to the Donovan Moodley case could have amounted to contempt of court. The failure of our authorities to prosecute any of these media members gives freedom of expression hope.
Likewise, we wrote about how cameras were allowed into court to film the judgment in the Shaik trial, a first in a SA criminal matter. This is a start for the development of a robust approach to freedom of expression. Hopefully in time our courts will allow cameras into court in all instances, except of course where the matter is heard in camera (although we have our doubts).
The relationship between censorship and classification also came under scrutiny regarding the ruling of the Films and Publications Board (FPB) on certain FHM, GQ and Cosmopolitan stories. The FPB had ordered that the publications could not be sold to persons under 18, and then only be sold in a plastic wrapper because they were classified as “soft porn”. On appeal, the decision was overturned because the Review Board found that making a decision such as this was about “judging in context, providing proper reasons, taking into account the relevant legislation and protecting the public from content only where necessary”. In making this decision, the FPB avoided unnecessary censure of the media, thereby encouraging the development of freedom of expression.
Other pertinent issues that we haven’t discussed in the column include events such as the gagging of the Mail & Guardian in the Oilgate scandal. Whether this translates into a regular practice inhibiting freedom of expression, only time will tell.
The bottom line is that freedom of expression, as our Constitutional Court has repeatedly recognised (the Laugh It Off case being a well-covered example), is of fundamental importance in a democracy. Some proponents even go so far as to argue that it is the matrix of all other rights. But conduct such as that of the SABC discussed above, which creates the perception that the public broadcaster only covers stories or those elements of stories that favour the ruling party, does much to discredit the media as a whole.
In our young democracy it was always inevitable that there would have been some pitfalls along the road to real freedom of expression. Nevertheless, this should not detract from the significant progress made thus far.
Toni Erling is an attorney and Reggie Manyakara a candidate attorney at Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg. Visit the firm’s website at www.rwr.co.za.