Mr Justice Mayat turned down an application for an interdict to muzzle the Mail & Guardian. The application was brought late last night by a Muslim organisation when it learnt the newspaper was publishing a cartoon depicting the Prophet Muhammad (see my previous post on this). As a judge and Muslim, Judge Mayat said, he was bound by the Constitution (see M&G editor Nick Dawes’ Twitter feed). Good decision by a principled judge.
This from Die Burger (via Legalbrief):
Freedom of speech is central to a stand-off between a Cape Town art gallery and a national company which has demanded that one of the artworks be removed. According to a report in Die Burger, Pam Golding Properties has demanded the removal of the artwork ‘Hated Communities’ by Richard Mason. Pam Golding has also sought an undertaking that the Association for Visual Arts gallery will not attempt to sell the piece. The gallery’s director, Kirsty Cockerill, said they will not be censored. The artwork was removed, but replaced with Pam Golding’s letter on the wall. The report says the artwork depicts a notice board resembling some of the attributes in Pam Golding’s logo. It is made out of perspex with a light shining from within. Mason has similar ‘satirical’ artworks focusing on Pick n Pay, BP, Woolworths and Walt Disney. An art reviewer described the work as satire with ‘commercial, political and religious propaganda’. ‘Artists don’t have the time or money to get involved in bitter legal battles with big companies. The companies can bully artists into silence,’ Cockerill said.
Shame on Pam Golding. And shame on the art gellery too, for caving in after saying they won’t accept censorship. They have the law on their side – remember Justin Nurse and SAB? – so why not take a stand?
More trouble. This from IoL (also via Legalbrief):
An interdict was served late last night against the Mail & Guardian and its editor Nic Dawes after publishing a cartoon by Jonathan Shapiro (Zapiro) depicting Prophet Muhammad, says a report on the IoL site. Dawes said the cartoon depicted Prophet Muhammad lying on a couch speaking to his psychiatrist. ’The cartoon picks up on the Facebook group which encouraged people to send pictures of the Prophet.’ He said when the first newspapers were distributed, he received a call from attorney Yusuf Ismail, stating that further distributions should be halted. ‘At that time I could not stop further distributions, and I would not have,’ said Dawes, according to a report in The Mercury. He said an interdict was then served and handled by Judge Mayat at the Johannesburg High Court last night.
Come on, I thought we were over this! At least I got my M&G in the post box this morning. The Eastern Cape batch must have been on the plane before the interdict was granted.
PS. Mmm. The cartoon is still on the website too. Good on you Nick.
What a great example of financial writing from the New York Times’ Floyd Norris, who lifts the normally humdrum market story to new heights:
Combine one part nervous traders, one part Greek crisis and one part trader error. Stir in one part central bank complacency. Bring to boil. Panic.
Read the full story here.
I believe in freedom of expression. Our Constitution protects the right to freedom of expression. That is why I cannot welcome the Equality Court’s ruling that Malema was guilty of hate speech when he commented on the young woman who had accused President Jacob Zuma of rape.
Please understand that I am not defending Malema. I am defending his right to freedom of expression, which is also mine and yours and which means nothing if it does not include the right to say things that offend other people.
This is what Malema said: “Those who had a nice time will wait until the sun comes out, request breakfast and ask for taxi money. In the morning, that lady requested breakfast and taxi money.”
He made his comment after Zuma had been acquitted of rape – so in the eyes of the law, the woman is not a rape survivor – but the words are nonetheless grossly offensive in the context of a society in which rape occurs frequently and survivors who get their day in court are often called upon to justify their sexual behaviour.
But do his words constitute hate speech?
Hate speech is defined in the Constitution as “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm” (my italics). Malema’s words were undoubteldy undoubtedly hurtful to many people. They may, at a stretch, be construed as “advocacy of hatred” based on gender. But did they constitute incitement to cause harm? I think not. And so, offensive though the words were to our sensibilities, they should be protected by the the Bill of Rights.
The Promotion of Equality and Prevention of Unfair Discrimination Act, under which Malema was charged and convicted, has, however, complicated issues by adopting a far wider definition of hate speech than the Constitution. The Equality Act (for short) defines hate speech as words “that could reasonably be construed to demonstrate a clear intention to be hurtful, cause harm or promote hatred on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth’.
Many legal commentators have argued that this definition is unconstitutional because it is too wide in its application. The constitutional definition applies to only four grounds: race, ethnicity, gender and religion. The Equality Act criminalises hate speech on seventeen grounds. Furthermore, the Constitution requires an intention to cause harm. The presence or not of intention That is an objective fact: in the absence of such an intention, words cannot constitute hate speech.
The Equality Act, however, requires only that words could be construed as having the intention of being hurtful, harmful or hateful to constitute hate speech, regardless of the actual intention of the person who utters them. This conjures up, as one legal commentator noted, an image of highly sensitive individuals using the Equality Act to insulate themselves inside their own intolerant world. In Malema’s case, many people would undoubtedly construe his words as having the intention to be hurtful, and that explains his conviction of hate speech in terms of the Act. But what are the implications for us as a free society?
Am I to be denied the right, for argument’s sake, of criticising to criticise Jacob Zuma’s prediliction for polygamous marriages because that may be hurtful to people who subscribe to a particular culture? Is it verboten to publish a picture of the Prophet Mohamed because that would be hurtful to Muslims, or to teach evolutionary theory because that offends some Christians?
The hate speech provisions o f the Equality Act have not yet been tested in the Constitutional Court. Perhaps this would be an opportunity. It would be a good test of how seriously we, as South Africans, take our right to freedom of expression.
PS. Times editor Ray Hartley expresses a similar sentiment on his blog.
PPS. So does Tim Cohen in Business Day.
PPPS. So does constitutional expert Pierre de Vos on his blog Constitutionally Speaking.
PPPPS. David Watson has a different view.
PPPPPS. Eusebius McKaiser in Business Day makes my point exactly.
PPPPPPS. Mmm. The above are all men…
In the past week, that blog posting has been attracting a storm of traffic, for reasons unknown to me. Roodt has in past had kind words about me, so I had a look at his blog for clues. I found none, but I did come across the following statement in one of his posts, which I offer as evidence for the benefit of readers still making up their own minds:
“…black failure and white success may be ascribed to a difference in attitude. But just like two individuals may differ in both attitude and ability, it is certainly admissable that races, too, may differ not only in attitude but also in ability. How much of the one can be explained by the other? (…) Blacks generally prefer parties and festivals because a lot of them lack the mental ability to excel at such demanding subjects as mathematics and natural science which require logical reasoning and cognitive ability.”
I rest my case.
Ah, the mystery is solved. Dan Roodt appeared on television this morning talking about the failure of the government’s BEE policies. His words must have struck a cord, because it prompted a host of Google searches on his name, which brought people to my blog. Thanks, Dan.
Speaking for the first time about his “love child“, President Zuma accused the media of invading his and the mother and child’s privacy, and “exploiting” the child for finanancial gain. I will concede one point to the president: the news media were careless in identifying the mother of the child, and thus, by implication, the child (who is entirely innocent in this matter). But, as I have pointed out previously, Zuma’s argument that his private life is his own business does not hold water. And his accusation that the news media are exploiting the child is, quite frankly, absurd.
Privacy rights “cannot be waived just because of the position one occupies”, Zuma said in his statement. He is wrong. Our law is very clear that privacy rights can be waived if there is an overriding public interest in disclosure, and that public figures – especially politicians – have a diminished right to privacy. If the president – already married to four wives – has a child born out of wedlock, it has financial implications for the state, and it contradicts his public statements about the importance of having safe sex. It also says a lot about his attitude to women (more about this later). Those issues make his sex life a matter of public interest, whether he likes it or not.
E-tv and the World Cup thugs: Section 205 subpoenas may damage media’s credibility, but so does shoddy journalismJanuary 22, 2010
Media lobbyists are jumping to the defence of e-tv after police served subpoenas on journalists who interviewed two criminals planning to prey on World Cup visitors. Police are demanding the unedited footage of the interview, as well as the identities of the thugs, one of whom has already been arrested. The other is likely to be nabbed soon, which would obviate the necessity fot the subpoenas and allow this issue to disappear quietly. But the debate around the use of Section 205 of the Criminal Procedure Act to force journalists to divulge information won’t go away.
Business Day argues in an editorial today that the legislation should be used circumspectly, not as a tool for lazy policemen who don’t want to do their own investigation.
“…in the e.tv saga, there is little to be gained from forcing journalists to reveal their sources and much potential to damage the media’s credibility with the public and ability to extract information from interviewees in future.”
I agree with Business Day’s argument in general. But I have to add: in the e-tv case, it is the broadcaster itself which damaged the media’s credibility with the public by manufacturing a Read the rest of this entry »