Freedom of expression in South Africa
Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression — the free and open exchange of ideas — is no less important than it is in the United States of America.
The first two categories of excluded expression have their origins in the International Covenant on Civil and Political Rights, and the United States Supreme Court case of Brandenburg v Ohio, respectively.
In upholding the prohibition, the court found that the outright ban served the legitimate objective of protecting the dignity of and preventing harm to children, and that no less restrictive means existed to achieve this purpose.
Similar considerations arose in the decision of Qwelane v South African Human Rights Commission,[8] which concerned the constitutionality of a provision of the Promotion of Equality and Prevention of Unfair Discrimination Act that prohibits hate speech in circumstances beyond those contemplated in section 16(2).
The court, applying this test, found that a reasonable person would regard a remark referring to "Zionists who belong to the era of their Friend Hitler" as being based on Jewish identity and thus the prohibited ground of religion.
Despite the explicit mention of hate speech in the form of "words" in the Promotion of Equality and Prevention of Unfair Discrimination Act, the Supreme Court of Appeal held in Afriforum NPC v Nelson Mandela Foundation Trust[12] that the prohibition contained in this statute is concerned with the "conveyance of ideas" or "communication of a message".
The constitutional validity of criminal defamation was upheld in S v Hoho,[13] with the court finding that the relatively drastic effect of the offence was counterbalanced by its onerous burden of proof.
Similarly, the court in Moyo v Minister of Police[15] found that the Intimidation Act was unconstitutional to the extent that it criminalised expressive conduct that fell short of creating an objectively reasonable fear of imminent violent injury.
Whilst the court's finding has been the subject of considerable academic debate, the degree of fault required to impose liability on mass media defendants following Bogoshi is generally regarded as being that of negligence.
It was, however, held in Nel v Le Roux[23] that a witness may rely on the infringement of a constitutional right as a "just excuse" for declining to answer a question in civil or criminal proceedings.
In Bosasa Operation (Pty) Ltd v Basson,[24] the High Court dismissed an application to compel disclosure of the sources of an allegedly defamatory article on the basis of the importance of press freedom.
Furthermore, the absence of adequate safeguards to maintain the confidentiality of journalists' sources was cited by the Constitutional Court as one of the respects in which the Regulation of Interception of Communications and Provision of Communication-related Information Act was unconstitutional.
The decision of the Constitutional Court in Laugh It Off Promotions v South African Breweries[37] has been recognised as a leading judgment on the relationship between trademark law and freedom of expression in English-speaking jurisdictions.
The majority held that a provision of the Trade Marks Act that sought to prevent the dilution of well-known trademarks had to be interpreted in the manner most compatible with freedom of expression.
Commentators have suggested that generous interpretation of the existing defences to a claim of copyright infringement would ordinarily be sufficient to give due regard to free speech considerations.
Contrastingly, a requirement of prior consent for the erection of billboards visible from a street or public place has been held to advance the legitimate, substantial and pressing purpose of promoting traffic safety and urban aesthetics.
