Criminal law The constitutionality of criminalising conduct that falls within the ambit of freedom of expression has on a number of occasions been considered by the courts. In
Mamabolo, with the court finding that the relatively drastic effect of the offence was counterbalanced by its
onerous burden of proof. Several divisions of the High Court have upheld convictions and sentences for the related offence of
crimen injuria without the issue of freedom of expression being raised or considered by the court. More recently, the Constitutional Court in
Economic Freedom Fighters v Minister of Justice and Correctional Services ruled that a provision of the
Riotous Assemblies Act criminalising the
incitement of others to commit "any offence" unjustifiably limited the right to freedom of expression in so far as the provision extended beyond those offences that threaten serious harm or danger. Similarly, the court in
Moyo v Minister of Police 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.
Defamation The law of defamation has been conceived in South African legal literature as aiming to strike a balance between the right to
reputation and the right to freedom of expression. This determination has been impacted in the constitutional era by the importance attached to the latter right. Similarly to the position in
English law, the
burden of proof rests on the defendant to establish a legitimate defence once publication of defamatory material has been proved by the plaintiff. The Constitutional Court in
Khumalo v Holomisa ruled that the
common-law position that the plaintiff need not prove falsehood to succeed with a claim for defamation was a reasonable and justifiable limitation on the right to freedom of expression, given the countervailing right to reputation, which is to be regarded as an incident of the broader right to
dignity. The imposition of
strict liability for defamation by
media defendants has, however, not survived constitutional scrutiny. The SCA in
National Media Ltd v Bogoshi concluded that free speech imperatives necessitated the development of a
defence of reasonable publication to excuse the publication of defamatory allegations in the press in circumstances where publication was not unreasonable given, amongst other things, the tone of the allegations and the reliability of the sources on which the allegations were based. 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. The potential
chilling effect of a claim by
juristic persons, particularly trading corporations, for
general damages for defamation has been recognised by the courts. The SCA in
Media 24 Ltd v SA Taxi Securitisation (Pty) Ltd nonetheless held that this position did not unjustifiably limit the right to freedom of expression. The Constitutional Court subsequently found in
Reddell v Mineral Sands Resources that this is subject to the qualification that such a claim is not permissible where defamatory allegations form part of "public discourse in public-interest debates", and in
Mineral Sands Resources v Reddell that
strategic lawsuits against public participation constitute an
abuse of court process that affords a defence against a claim for defamation.
Obscenity The majority of the Constitutional Court in
Case struck down a prohibition on the "possession of indecent or obscene material" contained in the apartheid-era Indecent and Obscene Photographic Matter Act on the basis that the prohibition contravened the constitutional
right to privacy. Justice Mokgoro in a minority judgment, however, reasoned that the prohibition further contravened the right to freedom of expression, which embraced the "right to receive, hold and consume expressions transmitted by others". The Court in
Phillips v Director of Public Prosecutions later relied squarely on the right to freedom of expression in finding that a prohibition on
nude dancing at
licensed premises was unconstitutional, given its overbroad formulation that included premises such as theatres. In
Print Media South Africa v Minister of Home Affairs and Another, it was held that an administrative scheme provided for in the
Films and Publications Act that required publications containing certain sexually explicit content to be submitted to the Film and Publication Board for
classification before publication amounted to
prior restraint, and was unconstitutional given the availability of less restrictive means to achieve the purpose of the prohibition.
Press freedom South African law does not recognise a blanket
journalistic privilege. It was, however, held in
Nel v Le Roux 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, 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 Constitutional Court has held that, as a starting point, court proceedings and records are open to the public. In
Independent Newspapers (Pty) Ltd v Minister for Intelligence Services, the court, weighing the competing considerations of freedom of expression and
national security, ordered the disclosure of certain portions of a court record containing
classified documents on the basis that it was not in the interests of justice for those portions to be kept secret. The court has subsequently invalidated legislative provisions that prohibited the publication of the particulars of divorce actions, required absolute confidentiality in respect of asylum applications, and absolutely prohibited the disclosure of tax records regardless of public interest considerations. Each prohibition was found to be more restrictive than necessary to achieve its purpose. in accordance with the ruling in
Multichoice (Proprietary) Limited v National Prosecuting Authority [2014] 2 All SA 446 (GP). The SCA in
Midi Television (Pty) Ltd t/a e-TV v Director of Public Prosecutions (Western Cape) held that the exercise of a
court's discretion in favour of restricting publication would only be in the interests of justice where "the prejudice that the publication might cause to the
administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place". This finding has been interpreted as support for a presumption against the constitutionality of prior restraints and
interdicts against defamatory publications, and is regarded as an attenuation of the
sub judice rule. the questioning of
Mark Thatcher in relation to his involvement in the
2004 Equatorial Guinea coup attempt, and the criminal trials of
Oscar Pistorius and
Henri van Breda. The right to publish has occasionally come into conflict with the countervailing
right to privacy. The High Court in
MEC for Health, Mpumalanga v M-Net & Another refused to interdict a
Carte Blanche broadcast concerning alleged malpractice in a public hospital despite the infringement of the privacy of hospital staff. Similarly, an application for an order preventing further commentary on the hospital records of former Minister of Health
Manto Tshabalala-Msimang was dismissed on the basis of her status as a public figure. The courts have, however, held that the public interest defence carries less weight if the content sought to be published is of an intimate nature.
Trademark law The decision of the Constitutional Court in
Laugh It Off Promotions v South African Breweries 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. The parodying of the trademark of
Carling Black Label beer on T-shirts sold for profit was found not to have resulted in a substantial likelihood of economic or trade harm to the trademark owner, and thus did not amount to trademark infringement. Whether the unauthorised use of a trademark amounts to protected expression was held to be central to this determination. 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. recognised that commercial speech constitutes protected expression. Whilst cautioning against "artificially created divisions between the value of different forms of speech", a
by-law imposing an absolute prohibition on billboard advertising by a third party on another's premises was struck down on the basis that less restrictive means were available to achieve the purpose of the by-law. 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. Public policy considerations featured prominently as part of the SCA's rationale for concluding in
British American Tobacco that a blanket ban on the
advertising and promotion of tobacco products was reasonable and justifiable. The ban imposed by the
Tobacco Products Control Act was found to be "the only way to address" the negative public health effects of smoking, particularly in light of South Africa's obligations under the
WHO Framework Convention on Tobacco Control. ==References==