The South Gauteng High Court on Tuesday found that recent amendments to the Films and Publications Act would deprive news of its value and interest.
Print Media South Africa and the South African National Editors’ Forum (Sanef) brought the application forward for fear that the revised legislation would severely impact media freedom.
Read the full judgment here
The complaints relate specifically to the compulsory submission of matters of substantial public interest to the Films and Publications Board — and that this will have “severe negative consequences for the publication as well as the public”.
The amendments introduced a system of pre-publication classification for publications other than bona fide newspapers where such publication contains sexual conduct, which “violates or shows disrespect for the right to human dignity of any person; degrades a person; or constitutes incitement to cause harm”.
The process also saw harsh criminal penalties for non-compliance.
Sanef chairperson of media freedom and Mail & Guardian editor-in-chief Nic Dawes said: “The amendments to the Act imposed extremely onerous pre-publication screening requirements on almost all publishers and were a drastic invasion into free speech and editorial independence.”
The amendments targeted the publication of magazines specifically which were argued to have little record of self-regulation and were randomly published — sometimes by those who did not fall within the codes of conduct regulating Print Media South Africa and Sanef.
Judge Rami Mathopo found these distinctions untenable because publications such as the Mail & Guardian and Financial Mail — both weekly papers — were subject to the same system of self-regulation and complied with the code of conduct.
Mathopo said, “It is probably no exaggeration to say that in all probability, democracy cannot survive in the absence of freedom of expression … I have no doubt that timeous communication is essential in a democratic system, for absent the right to receive, impart and give expression to information and ideas, there can be no meaningful talk or debates of liberal democracy.”
He added: “Consequently, in a democratic society a system of prior restraint based on executive approval will operate as greater deterrent to freedom of expression and cause damage to fundamental democratic rights”.
Mathopo stated that because of the nature of news, even a short delay in the release of information would deprive it of its value and interest. He said the media provided full and detailed media coverage of current affairs and that this served the community as a whole.
The judge found that the amendments were unconstitutional and that to remedy this, the section could only be applied where a publication advocated or promoted sexual conduct as opposed to merely containing it.
“The judgement is an important addition to the growing body of South African law which places freedom of speech and of the media at the centre of our democratic dispensation,” said Dawes.
President of PMSA, Hoosain Karjieker, said that the industry was pleased with the positive outcome of the court challenge which was the culmination of five years of struggle with the legislation. “It is not only a win for the print media industry but also for freedom of expression and democracy.”