This is the second part  of a speech delivered on Press Freedom day, 19 October 2012 at Wits University.  The first part was posted on Wednesday 24 October 2012.  The third part will be posted later this week

When you examine the media freedom jurisprudence of our courts in recent years, what is striking is how far we have come in quite a short space of time.

Defamation

I’ll start with the law of defamation, which remains one of the most significant restrictions on what may be published.  In the last two years we have seen three major developments which are profoundly protective of the media:

First, the Constitutional Court reinvigorated the defence of honest or fair comment in the case of The Citizen v McBride.  Even though the court described some of The Citizen’s commentary on whether Robert McBride was fit for public office as “vengeful and distasteful“, the court confirmed that criticism is protected

“even if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly held opinion, without malice, on a matter of public interest on facts that are true”.

This entitled the newspaper to complain about McBride even in terms that were “abrasive, challenging and confrontational”.

The second major advance I want to mention in the law defamation in recent years has been the approach the courts have adopted to prior restraints, or interdicts to stifle publication.  Last year, the City Press succeeded in the South Gauteng High Court in opposing an interdict brought by Julius Malema concerning payments into his now notorious Ratanang trust, allegedly to compensate him for facilitating tenders.

But the more important case on prior restraints is now the Constitutional Court’s decision handed down just three weeks ago today in Print Media SA and SANEF v Minister of Home Affairs.  That case was not about defamation but concerned prior restraint on publications containing certain forms of sexual conduct – under the Films and Publications Act, these types of publications would have to be submitted for classification before they could be published.  But the ripple effects of this judgement will extend far beyond the facts of the case.

This is because, as I’ve written about the case, the Court effectively adopted an approach to free speech of “publish and be damned”, rather than the prior restraint approach taken by the Films and Publications Act, which severely undermined freedom of expression.   Justice Skweyiya for the Court endorsed the English law principle that

“prior restraint on publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be awarded where there is a substantial risk of grave injustice”.  

It seems to me that as a result of this case, interdicts such as those which were granted against the Mail & Guardian in the Oilgate saga, and against the publication of the controversial Prophet Mohamed cartoon in the Sunday Times, should now be regarded as aberrations.

The third defamation decision which I want to celebrate today is an aspect of the Supreme Court of Appeal’s ruling in Media 24 v SA Taxi.  This case clarified that where a plaintiff sues for what lawyers call special damages as a result of a defamatory publication, additional requirements must be met.

Special damages, for the uninitiated, are patrimonial losses such as loss of profits.  The prospect of being sued by, say, a multinational, for millions in loss of profits must surely create a chilling effect on freedom of expression, particularly for financial journalists.

What the court confirmed in the SA Taxi case is that if you want to sue for these kind of damages, you have to prove that the publication was false and you probably have to even go further and prove knowledge by the publisher of falsity.  So after this case, a Reeva Forman would today have to prove that Style magazine published false allegations knowing them to be false, and of course that the publication caused the loss of profits, before damages would be awarded.

The fascinating aspect of this development is that, in the context of suing for special damages, the SA Taxi case mirrors the requirements for public officials suing for defamation adopted by the US Supreme Court in its famous New York Times v Sullivan decision, a case widely regarded as the high water mark for freedom of expression, and one that our courts have steadfastly refused to adopt in other contexts.  The effect of the decision is journalists who act in good faith and are not reckless in their investigation need not fear bankrupting their employers and themselves in a claim for lost profits.  The SA Taxi decision radically ameliorates the tendency to self-censor for fear of being sued for ruinous amounts of damages.

So these three cases illustrate how our courts have intervened in crucial respects to cement an approach in defamation law which prioritises freedom of expression over reputation in certain contexts.

These developments are generally supportive of an approach in our defamation law which marks out protected territory to criticise public officials and others who wield public power.  Those in power should not readily turn to defamation or dignity law to seek to stifle criticism of their official conduct.

The best example of a person wielding power who is fond of using defamation and dignity laws is our very own President Zuma.  Between 2006 and 2010, the President instituted court action in 15 cases, suing eight newspapers, a radio station, two cartoonists, a columnist, op-ed writers, and journalists.  That’s an average of nearly four lawsuits a year.  And this year he sued the Goodman Gallery for alleged invasion of his dignity.  The vast majority of these cases are still pending, despite the president’s statement in his inauguration address in 2009 that “we must defend the freedom of the media”.  And the majority of the claims, which total over R50 million, are not about news stories that the president regards as inaccurate, but rather concern criticism of his conduct.

Although our president is apparently easily offended, our defamation law ought to discourage these kinds of claims by public officials.  The developments I have described above go a long way in this regard.

Source protection

The next area I want to highlight is the law concerning protection by journalists of their confidential sources.  As this is part of every journalist’s DNA, you may be surprised to hear that a decision of the South Gauteng High Court on Freedom Day this year, which allowed the Mail & Guardian to protect its sources in a defamation case, was the first case of its kind after our Constitution was adopted.

A company called Bosasa is suing the Mail & Guardian for alleging corruption in its relationship with the Department of Correctional Services.  As part of a preliminary skirmish, Bosasa claimed that it was entitled to unredacted documents which would have revealed confidential sources used by the newspaper in its story.

Although the court included in its judgment the usual, boiler plate language about how each case must be decided on its own facts, there can be no doubt that after this case, the protection of confidential sources in public interest stories must be regarded as the general rule, both in civil cases such as this one, and in criminal cases involving section 205 of the Criminal Procedure Act.  Judge Tsoka’s ruling should be music to the media’s ears:

“It is essential that in carrying out this public duty for the public good, the identity of [the media’s] sources should not be revealed, particularly where information so revealed would not have been publicly known. This essential and critical role of the media is more pronounced in our nascent democracy, founded on openness, where corruption has become cancerous, and needs to be fostered rather than denuded.”

The judge felt so strongly that he was correct in his judgement that he even later denied Bosasa permission to appeal, and Bosasa has now petitioned the Supreme Court of Appeal for this permission.  Watch this space.  If the case does go on appeal, one hopes that the appeal courts will adopt the famous ruling of the European Court, that “protection of journalistic sources is one of the basic conditions for press freedom,” and rule once and for all that in appropriate circumstances, the media is entitled to source protection.

Open justice

The last area that I want to give attention to in the narrative of media freedom that I am sketching is the right to open justice. Again significant strides in favour of access to courts and tribunals have been made.

It is also in this area of our media law where courts have been challenged to accept that the days of print journalists taking notes at court for purposes of publishing a story the next day, at the earliest, are already rapidly declining.  Today’s court reporter tweets from court, offering a blow-by-blow account of the case, and then may post a story on the newspaper’s website a few times during the court day, or may regularly go on air to update the radio listener.

Indeed, court and tribunal proceedings are increasingly filmed and broadcast.

This trend is perhaps best exemplified by the Practice Manual which was adopted in the North Gauteng High Court from 1 July 2012, and which as a default position allows broadcasting by television or radio of any case in that court, simply by giving the registrar 24 hours’ notice.  This is an incredible innovation by the deputy judge president, Willem van der Merwe, and it applies to trial proceedings as well as applications.

Of course the Julius Malema Equality Court trial was broadcast live, and cameras were also allowed into the liquidation enquiry into the affairs of the Pamodzi gold mines which had been managed or mismanaged in liquidation by Aurora.  And more recently cameras were also allowed into the on-again, off-again disciplinary enquiry by the NDPP into senior prosecutor, Adv Glynis Breytenbach.

It was ground-breaking for the courts in the Aurora and Breytenbach cases to grant access to journalists to these enquiries in the first place (such access was unprecedented).

The first is a usually secret liquidation enquiry, and the second an internal disciplinary enquiry.  But the courts went even further than access, allowing, with some reporting restrictions, permission to broadcast.

Increasingly, if an enquiry concerns a matter of public interest and much of the information about the dispute has already reached the public domain, there is a strong argument for media access, whether that access takes the form of print journalists with their traditional or electronic notebooks, tweeting journalists with their mobile phones or tablets, or radio and television journalists with cameras and microphones.

I have come to the end of the nice narrative, and I hope I have persuaded you that our jurisprudence on media freedom is generally one of which we can be proud.  I must, however, now consider a few worrying threats to this solid foundation of media freedom.

Dario Milo is a partner at Webber Wentzel and visiting associate professor at Wits University.