Mail & Guardian wins victory for press freedom

May 21, 2010

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.


Not a great day for freedom of speech…

May 21, 2010

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.


McBride defamation judgment is a step backward for press freedom

March 2, 2010

Harvey Tyson, a former editor of The Star, memorably remarked that editing a newspaper during the dark days of the emergency legislation was like “walking blindfold through a minefield”. The job may be slightly easier these days, but the Supreme Court of Appeal’s judgment in Robert McBride’s defamation case against the Citizen illustrates that some of those landmines are still out there. News media had better tread carefully.

McBride, the former Ekurhuleni police chief, won R150 000 in damages, plus most of his legal costs, from the Citizen for calling him a murderer, a criminal and unfit to be appointed as police chief. The ruling sets off alarm bells for several reasons. For one, it is one of the largest-ever damages awards for defamation in South Africa, and together with legal costs would prove crippling to many a news organisation (if not for the Citizen). It is sure to have a chilling effect on future news reporting and commentary. Secondly, in rejecting the Citizen’s appeal against a High Court ruling, the SCA in effect ruled that it is defamatory to refer negatively to the past actions of someone who has been granted amnesty for those actions by the Truth and Reconciliation Commission. That could make it very difficult to report and comment on the activities of people who were involved in human rights abuses during apartheid, and received amnesty.

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E-tv and the World Cup thugs: Section 205 subpoenas may damage media’s credibility, but so does shoddy journalism

January 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 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 »

E-tv manufactured, not reported, the news in World Cup crime story

January 19, 2010

Back in the apartheid era, it was not uncommon for journalists to be subpoenaed to reveal the identity of confidential sources. This was usually done at the behest of the security police, who wanted to get their hands on the identities and whereabouts of political activists. Several journalists, to their eternal credit, served time in jail for refusing to comply with a dreaded “Section 205” subpoena. Since 1994, however, “Section 205” subpoenas against journalists – so called because they are served in terms of Section 205 of the Criminal Procedure Act – have become rare. It came as a surprise, therefore, when two e-tv journalists were subpoenaed this week to reveal the identity of two thugs they had interviewed for a programme on crime and the Soccer World Cup.

According to Business Day, reporter Mpho Lakaje’s story, aired last Friday, featured interviews with two criminals. One said he would rob tourists during the World Cup. Another said he would shoot his way out of a standoff with police if he felt his life was in danger. Lakaje and news editor Ben Said have been subpoenaed to appear in court next week unless they voluntarily surrender the identity and contact details of the interviewees, original footage, and details regarding the firearms featured in the story.

Legally, e-tv doesn’t have a leg to stand on. Section 205 gives a judge or magistrate, upon the request of the prosecuting authority, the power to order any person who may have Read the rest of this entry »

Jurie Els is on the warpath

January 8, 2010

Fresh from his acquittal on charges of sexually molesting a minor, singer Jurie Els is taking aim at media. News24 reports that Els has “requested … police to investigate a charge of defamation against” singer Sonja Heroldt and the newspaper Sondag about remarks she allegedly made after his acquittal. And this is only the begining, Els warned: “I’m also going to drag several other people to court. I want to send a message that people should think before they speak.”

Of course, Els has every right to take legal action to protect his interests. But asking the police to investigate a “charge of defamation”? Defamation is first and foremost a delict, or unlawful act, which gives rise to civil liability. That means a person who has been defamed would seek satisfaction by sueing the defamer for damages. Although criminal defmation is recognised in South African law, prosecutions are exceedingly rare, with only two reported cases since 1953. Because criminal sanctions are much more drastic than an award of Read the rest of this entry »

Between privilege and subpoena: the protection of journalists’ confidential sources

September 6, 2009

(Ecquid Novi African Media Studies 2006 27 (2): 111 – 134.)


 Recent events in South Africa and elsewhere have focused attention on the position of journalists faced with legal action aimed at discovering the identity of confidential sources. It is widely accepted in the journalism community that journalists have an ethical obligation to protect the identity of confidential sources. The obligation derives from the central role that journalism plays in democracy, yet in South Africa it may bring journalists into conflict with legal measures aimed at forcing disclosure, such as Section 205 of the Criminal Procedure Act. Journalists may find themselves in a position where they have to choose between acting ethically or upholding the law. This article explores the rationale for the protection of confidential sources and compares the normative ethics and jurisprudence relating to protection of sources in various jurisdictions, including South Africa. It examines processes currently under way to establish legal protection of journalists against forced disclosure, considers a number of options that may be pursued. It concludes that any such measure should cover both criminal and civil proceedings, and suggests that the answer may lie in the proper interpretation of the right to freedom of expression to accord a qualified privilege to journalists.

 Keywords: Confidential sources, Criminal Procedure Act, democracy, ethics, freedom of expression, journalism, media law, media freedom, privilege, South Africa, subpoena, freedom of expression.

1.         Introduction

The duty to protect confidential sources of information “is a basic tenet of journalistic ethics” (Kruger, 2004: 190). It is a near-universal feature of journalism ethics codes in South Africa (Retief, 2002), Europe (Ronning & Kasoma, 2002) and the United States (Son, 2002). Although there is wide acceptance of the ethical obligation to protect sources who have been promised confidentiality, the question of whether this obligation should be recognised in law is more controversial. It is embodied in some form in jurisdictions as diverse and far-flung as Mozambique, Sweden, and all but one state of the U.S.; in others, including South Africa, legal protection is not yet established.

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