Prior restraints on publication are a particularly oppressive form of censorship. Courts in societies that cherish the free exchange of information are loath to restrain the publication of an article, either because doing so is unconstitutional (in the United States) or because, as one English judge put it, “in this country we have a free press. Our press is free to get things right and it is free to get things wrong”(Lord Justice Brooke).
This principle has developed into a rule of law: the rule against prior restraint. The rule provides that the courts will not restrain the publication of a defamatory article when the press intends to defend such an article, unless the plaintiff can show convincingly (at the interdict stage) that the article contains palpable untruths.
That is not to say that a defamed individual is without remedy. Where an individual’s right to an unimpaired reputation has been infringed, he or she can sue for defamation.
The rule is premised on constitutional rights and the notion that the media have the right to publish defamatory statements at the risk of having to pay damages if such statements cannot subsequently be justified.
In May this year, in the case of Midi Television and the director of public prosecutions, the Supreme Court of Appeal placed South African law on the same footing, unequivocally accepting the principles underlying the rule against prior restraint and positioning it in the context of our Constitution, while specifically rejecting any notion of press exceptionalism.
The case concerned an urgent interdict against e.tv by the director of public prosecutions in 2005. The interdict prevented the broadcaster from showing a documentary about the Baby Jordan murder. The prosecuting authority had insisted on viewing the documentary before it was broadcast, so that it could satisfy itself that it would not prejudice the forthcoming trial. E.tv refused, and the prosecuting authority was granted an interdict by the Cape High Court prohibiting the broadcast. E.tv appealed the ruling.
The appeal court found that the prosecuting authority could not require e.tv to demonstrate that it would act lawfully as a precondition to exercising its freedom to publish, and that the restraining order should not have been granted by the high court.
Although the case concerned the extent to which freedom of expression may be curtailed in favour of preserving the integrity of the administration of justice, the court found that the same principles apply, with appropriate adaptation, whenever the exercise of press freedom is sought to be restricted by the protection of another right.
So, for example, where it is alleged that publication of an article is defamatory, but the plaintiff has yet to establish that the defamation is unlawful, the court stated that an award of damages is usually capable of vindicating the right to reputation if it is later found to have been infringed, and an anticipatory ban on publication will seldom be necessary for that purpose.
Where there is a risk to rights that are not capable of subsequent vindication, a narrow ban might be all that is required, if any ban is called for at all, and only if the court is satisfied that at trial the applicant is likely to establish that publication should not be allowed.
Even then, publication will not be unlawful unless the court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation a court must take into account the interests of every person in having access to the information — in other words, the public interest.
So the appeal court has laid down the law: there should be no interim interdicts or restraints on publication, unless the court is satisfied that at trial the applicant is likely to establish that publication of a defamatory item should not be allowed; and, even then, only if the court is satisfied that the disadvantage of curtailing the free flow of information to the public is outweighed by the advantage to the applicant of curtailing the information.
Pamela Stein is a partner at Webber Wentzel Bowens