Last week the Constitutional Court handed down a momentous ruling on freedom of speech. The case concerned the constitutionality of aspects of the Films and Publications Act of 1996, following its amendment in 2009.
Of primary concern to the applicants – Print Media South Africa and the South African National Editors' Forum – was the provision in the Act compelling a publisher to seek permission before publishing certain material. This provision forced any person who creates, publishes or advertises a publication that "contains sexual conduct which violates or shows disrespect for the right to human dignity, degrades a person, or constitutes incitement to cause harm" to submit the publication for examination and classification to the Films and Publications Board before distributing the publication.
Only newspapers that are regulated by the press ombudsman were exempt from this prior restraint on publication. If a publisher did not submit the material for prepublication classification, he or she could face a fine or imprisonment for a maximum of five years, or both.
To make matters worse, both the terms "publication" and "sexual conduct" are broadly defined. To give some illustrations, "publication" includes any newspaper, book, poster, drawing or painting, as well as any message or communication on the internet. "Sexual conduct" includes sexual intercourse, male genitals in a state of arousal or stimulation, and the undue display of genitals.
It is important to emphasise that the prohibition on publication without classification did not apply only to publishers of hardcore pornography. It also potentially applied, for example, to books dealing with sexual themes, educational pamphlets about sexual intercourse, cartoons such as Zapiro's famous "rape of justice" image, law reports describing violent sexual crimes and, as emphasised by the friend of the court, Section 16, any number of Facebook posts, tweets and blogs describing sexual conduct.
Justice Thembile Skweyiya, writing for eight justices, struck down the prior restraint as offensive to the right to freedom of expression. Going further even than the relief sought by the applicants, he also ruled that the provision could not be saved by clarifying certain of the criteria for classification: it had to be severed from the Act in its entirety.
The court's decision rested on a number of fundamental propositions.
First, it endorsed the Supreme Court of Appeal's previous decisions on prior restraints, ruling that "an effective ban or restriction on a publication by a court order even before it has 'seen the light of day' is something to be approached with circumspection and should be permitted in narrow circumstances only". This ruling should in future give pause to those who seek to interdict the media from publishing what are alleged to be defamatory allegations.
Second, the court emphasised that prior restraint clearly limited the right to freedom of expression in circumstances in which "the free flow of constitutionally protected expression is the rule and administrative prior classification should be the exception". More broadly, the court said that "whether expression lies at the right's core or margins, be it of renown or notoriety, however essential or inconsequential it may be to democracy, the right recognises an elemental truth that it is human to communicate".
This is a ringing articulation of a wide conception of the right to free speech: it not only protects explicitly political speech, but also extends to other forms of speech, including speech about sexual conduct.
The third important observation Skweyiya made was his emphasis on the "vital role of a healthy press in the functioning of a democratic society. One might even consider the press to be a public sentinel." Also, "in some instances, the very delay in bringing important information to the public's attention makes inroads into the right to freedom of the press and other media". These words are particularly encouraging for the media because it confronts the Protection of State Information Bill and possibly a media appeals tribunal as mooted by the ruling party.
Fourth, the court considered whether prior restraint was justifiable in an open and democratic society. The purposes of the Act were laudable: providing consumer advice, protecting children from exposure to harmful or age-inappropriate material and banning child pornography. But prior restraint would not have any impact at all on other provisions of the Act, provisions that prohibit the publication of child pornography and exposure of children to pornography. The provision was not necessary to achieve the purposes of the Act insofar as they apply to children.
Moreover, the prior restraint was particularly invasive: the classification regime shifts the locus of control from the publisher to an administrative body, which "is more likely to restrict publications when it can classify upfront than when it must take punitive or restrictive action after publication".
The restraint also created the danger that the autonomy of the individual, who is deprived of choices in relation to published material, is eroded. This "whittles away at his capacity as a free moral agent".
Finally, in the justification analysis, Skweyiya was of the view that prepublication court interdicts remained a less restrictive alternative for an aggrieved individual, where the burden of proof would be on the party seeking to restrain the expression.
The fifth proposition that emerged from the Constitutional Court's decision in this case was the preference for a post-publication approach to sanctioning unlawful content. As the court put it, "the mainstay of the law is to encourage lawful conduct rather than to seek to guarantee lawfulness by restricting conduct altogether … Should a publisher choose not to pursue the avenues available to gain certainty about the lawfulness of intended publication, then he must bear the risks attendant upon the decision to publish."
In other words, as the Duke of Wellington is reported to have said in 1824 when approached by a person wishing to publish scandalous information about him, "publish and be damned". This is a decision publishers face daily – they consider the legal and ethical considerations concerning a proposed publication. If they take an irresponsible decision to publish, they face potential civil and, in some cases, criminal liability: they may be hauled before the Press Council, the Broadcasting Complaints Commission of South Africa, the Advertising Standards Authority, or the Films and Publications Board.
The result of the case is that publishers need no longer be concerned about submitting material that might constitute troublesome sexual content for prepublication examination and classification – they may now publish and be damned.
Yet publications other than those of members of the Press Council, who are exempt, may still be classified after publication. A case in point is the classification of Brett Murray's art work The Spear as "16N" – not to be seen by viewers under the age of 16 because of nudity. (This decision is on appeal.) The court did not deal with the prior restraint in the Act that compels films and games to be submitted for classification before they are distributed – a regime that may well now itself be vulnerable to attack.
More fundamentally, the court has warned against the dangers of censorship. As the National Council of Provinces deals with classification legislation of a different kind – the Protection of State Information Bill – it is hoped that this warning is heeded.
Dario Milo is a partner at Webber Wentzel and a visiting associate professor at the University of the Witwatersrand. He acted for nongovernmental organisation Section 16 in the case