Enforcing the right to freedom of speech

Print Media South Africa and Another v Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22 (28 September 2012)

The South African Constitutional Court has enforced the constitutional right to freedom of expression in the recent decision of Print Media South Africa and Another v Minister of Home Affairs and Another. The Court found that recently amended provisions of the Films and Publications Act (No 65 of 1996) infringed the right to freedom of expression found in section 16 of the South African Constitution.

Facts

Section 16 of the South African Constitution provides that “everyone has the right to freedom of expression.”

The South African Films and Publications Act (No 65 of 1996) was recently amended to require publishers, with the exception of bona fide newspapers, to submit publications for prior approval to an administrative body where the intended publications contained amongst other things, sexual conduct that violates or shows disrespect for the right to human dignity, degrades a person or constitutes incitement to cause harm.

The applicants in these proceedings were two not-for-profit organisations who represent the interests of various sectors of the South African media. The challenged provisions of the Act were sections 16(1), 16(2), 16(2)(a) and 24A(2)(a). The applicants’ main concerns were with section 16(2)(a) of the Act, which required publications depicting certain kinds of “sexual conduct” to be submitted for the approval of an administrative body prior to publication. Their complaint also included the expansive definition of “sexual conduct” and the wide definition of “publication”. In addition, the applicants argued that there is no rational basis for the exemption of bona fide newspapers from prior classification and not magazines.

The respondents were the Minister for Home Affairs, the Cabinet minister responsible for the administration of the Act, and the Film and Publication Board (the administrative body given powers under the Act of prior approval of publications). The respondents relied on the purposes of the Act, namely “to prevent exposure of children to age-inappropriate material and to ban child pornography, as justifying the means of prior approval for publications.” The High Court declared that these amendments infringed the constitutional right to freedom of expression.

Decision

The South African Constitutional Court confirmed the High Court’s declarations of constitutional invalidity.

The majority judgment was delivered by Justice Skweyiya who stated that “freedom of expression is the kernel of this case.” The Court held that the right to freedom of expression embraces “the liberty to express and to receive information or ideas freely.”

The focus of the majority judgment was on the lack of proportionality in the regime prescribed by the Act.  The Court acknowledged that “aiming to curb generally the publication of proscribed materials and to control the manner in which some publications are made available are legitimate objects.” However, the means to achieve this end in this case were considered unconstitutional.

The majority judgment considered that prior approval by an administrative body was “not the exclusive means through which the Act’s purposes … may be achieved.” It proposed that “one less restrictive alternative in our law to administrative prior restraint is a court interdict.” The Court stated that:

A court seized with an application for an interdict is required to balance carefully various factors and rights, relating to both the right-bearer and the party seeking the restraint. A central consideration is the impact on the right to freedom of expression.

The majority considered that one of the advantages of a court interdict over an administrative prior restraint process is that the burden of proof is on “the party seeking to restrain the expression, rather than on the party seeking to vindicate the right.”

Ultimately it was held that “the central constitutional deficiency lies in the administrative and compulsory nature of the Act’s prior classification scheme, in circumstances where there are less restrictive alternatives for achieving important legislative purposes.” In those circumstances, the Court did not consider it necessary to address the question of the criteria being “vague and overbroad.”

In a separate judgment, Justice Van Der Westhiuzen, with two justices concurring, took a different view and found that the vagueness of the criteria was a central issue to be determined. His Honour held that the alternative of a court interdict proposed by the majority would still not be constitutionally valid if it were based on “unacceptably vague criteria.”

The Court concluded that the requirement for prior approval for a publication that “contains sexual conduct” be severed from the Act and an exclusion from the requirements of prior approval be extended to bona fide magazines.

Commentary

Against the background of extreme censorship that existed in South Africa during the apartheid regime, this decision represents a significant step forward in the recognition and protection of human rights in South Africa.

Australia does not have a constitutional right to freedom of expression; however, the High Court has recognised that in limited circumstances there is implied constitutional freedom of political communication. In Victoria, section 15(2) of the Victorian Charter of Human Rights provides that "every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria." In Victoria at least, it would appear that legislation such as the kind considered in this case would be held to be inconsistent with the Charter. The High Court has recently heard a case challenging the validity of by-laws in Adelaide which seek to prevent street preachers. The decision is eagerly awaited as it may provide clarity on the current status of the right to freedom of expression in Australia.

This decision is available online at: http://www.saflii.org/za/cases/ZACC/2012/22.html

Claire Bridge, Solicitor, King & Wood Mallesons Human Rights Law Group.