The willingness of the courts to issue interdicts preventing newspapers from publishing has become a deeply disturbing trend.
Last week’s order, obtained by MTN head Maanda Manyatshe in the Johannesburg High Court, was the third of its kind in the space of a year. Earlier, some Sunday newspapers were barred from publishing the Danish cartoons about the Prophet Muhammad, and an Oilgate report in the Mail & Guardian was blocked.
Such rulings amount to pre-publication censorship in which judges are allowing themselves to be used to second-guess editors.
Journalism and the law are fundamentally different fields. Legal processes can drag on for years, while editorial decisions have to be taken on the turn. The courts can rely on police investigations, and can compel people to give evidence — advantages not available to journalists.
Nevertheless, journalists have to be ready for judicial scrutiny. There is always the possibility of a defamation suit, and editors often have to ask themselves, ”If they sue, can we defend the story?”
A defamation suit is a serious matter. The alternative Afrikaans weekly, Vrye Weekblad, was forced to close because of the ruinous costs involved. Besides the damages that can be awarded, there are usually hefty legal costs, and editors have to consider the time that will be soaked up in legal consultations, drafting of documents and hearings.
The point is that a defamation suit offers redress for anyone who feels wronged by a newspaper report, and the possibility of being sued does quite enough to force editors to consider publication very carefully.
A pre-emptive interdict is wholly inappropriate. It leaves the court taking editorial decisions, which it is not equipped to do. Even the government has expressed unease at the practice. At the time of the row over the Muhammad cartoons, spokesperson Joel Netshitenzhe said that the government preferred to see editorial decisions regarding what to publish being made exclusively by the media.
Astonishingly, there is long-established legal precedent that seems to have been ignored. A 1931 judgement, I am told, sets out that an interdict against publication can only be granted under extreme circumstances, if no defence at all is presented.
In terms of the Manyatshe story, the M&G clearly had a case, which usually involves showing that there is evidence for the claims and that they are in the public interest.
During last week’s hearing, Judge Mohammed Jajbhay apparently asked what damage the newspaper would suffer if the story was held back for a week. The answer is that this trend is causing quite a lot of damage.
For one thing, it encourages further actions of this kind. As M&G associate deputy editor Nic Dawes says, anybody with R20 000 can buy themselves some time if they fear being embarrassed by newspaper disclosures. It opens the way for editors to be tied up in needless and expensive court wrangles just before they go to print.
Ironically, such interim orders are of dubious benefit. Manyatshe could have used the opportunity the paper gave him to state his case, and the M&G would have published his account together with its reportage.
As it stands, readers still know that there are assertions that make Manyatshe so uncomfortable that he had them suppressed. This opens the way to all kinds of speculation. Does an interdict really serve his interests?
The press code says that ”the views of the subject of serious critical reportage” should usually be sought before publication. This can only be avoided, the code says, if the newspaper has reasonable grounds to believe that it might be prevented from publishing, evidence might be destroyed or witnesses intimidated.
It would be a tragedy if this spate of interdicts leads editors to avoid seeking comment for fear a court will block publication, or to leave the request for comment to the last minute to make an application for an interdict impossible. It would violate the ethic of fairness that is basic to journalism.
The rush for interim interdicts harms freedom of speech. In some countries, notably the United States, that freedom is taken as the pre-eminent right. So far, our courts have not taken this approach, preferring to balance various rights against each other.
But senior judges have emphasised the importance of a free media. Chief Justice Pius Langa said recently: ”Free speech must always be ‘a very good thing’ whether or not it causes trouble. I do not believe the media can do its job properly without causing trouble.”
It is time that the Constitutional Court is asked whether interim orders of this kind violate the right to free speech which, as Langa points out, is primarily the right of citizens to be informed.
The Mail & Guardian’s ombud provides an independent view of the paper’s journalism. If you have any complaints you would like addressed, you can contact me at [email protected]. You can also phone the paper on (011) 250 7300 and leave a message