The famous American jurist, Benjamin Cardoso once remarked that “freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom”.
Cliffe Dekker Hofmeyr recently represented Print and Digital Media SA (PDMSA) and the South African National Editors Forum (Sanef) in the Constitutional Court in a challenge to certain provisions of the Films and Publications Act No, 65 of 1996 (Act) introduced by the Films and Publications Amendment Act, No 3 of 2009.
The application was opposed both by the minister of home affairs and the Films and Publications Board (FPB).
The contested provisions sought to introduce a system of pre-publication classification for various forms of publications. The system dictated that whenever a publication fell within the requirements of s16(2) of the Act, such as a publication that contained sexual conduct which violated or showed disrespect for human dignity, it had to be submitted to the FPB for classification before it could lawfully be distributed in South Africa.
This meant that any magazine, which wanted to include an article containing sexual conduct, even if that article was reporting on it in an objective and fair manner, would have to be submitted to the FPB for classification before it was published.
The applicant argued that not only was this pre-publication classification entirely unwarranted and unjustified, but it would also have severe and highly negative consequences for the publications concerned as well as the public. In addition, various provisions of the amended Act granted an exemption to newspapers that are subject to a self-regulatory mechanism, but failed to grant magazines the same exemption.
The Constitutional Court held in its majority judgment that the requirement of pre-publication classification limited the right to freedom of expression, which was vital to a democracy.
The Court held that the limitation was not justifiable as pre-publication classification did not satisfactorily achieve its purposes in a proportional manner and that there were less restrictive alternatives for achieving the Act’s purpose of controlling certain publications.
For example, prior restraint through the courts (in the form of an interdict) could achieve the same purpose and place less severe restriction on the right to freedom of expression. The Court also held that the unequal treatment of magazines compared to newspapers offended the right to equality and the legality principle without justification.
The judgment affirmed the right to freedom of expression, declared unconstitutional the offending portions of the Act and afforded magazines the same protection as newspapers.
Tim Fletcher is director and national practice head, and Deshni Naidoo an associate, dispute resolution, at Cliffe Dekker Hofmeyr