The recent decision issued by the Press Appeal Panel in a complaint lodged by the South African Hindu Dharma Sabha against the Sunday Times raises important questions regarding the intersection between freedom of expression and religion.
The complaint concerned a Zapiro cartoon depicting officials of Cricket South Africa (CSA) sacrificing their chief executive officer Haroon Lorgat to the Hindu deity, Lord Ganesha.
The context in which the cartoon was published was that CSA and its Indian counterpart, the Board of Control for Cricket in India (BCCI), were involved in a public spat concerning Lorgat. BCCI had reportedly insisted Lorgat should be removed as the head of CSA, failing which it would cancel games between South Africa and India and this would cause serious financial loss to CSA.
The cartoon caused outrage within the Hindu community and numerous complaints were lodged with the Press Ombudsman against the Sunday Times on the basis that the cartoon disrespected Lord Ganesha.
The section of the Press Code in terms of which the complaints were considered states that “except where it is strictly relevant to the matter reported and it is in the public interest to do so, the press shall avoid discriminatory or denigratory references to people’s… religion… belief, culture…”.
The Press Ombudsman said he had to weigh up the right to freedom of expression against the offence that the cartoon caused. He decided that the cartoon was primarily a comment about CSA’s reaction to the demands made by BCCI as opposed to a comment on Hindu religion. He said that if the cartoon has ridiculed Lord Ganesha, the outcome of the complaints may have been different. He concluded that although the cartoon was in bad taste, the complaints should be dismissed. On appeal the Press Appeal Panel agreed with the Ombudsman’s reasoning and dismissed the appeal.
This clause of the Press Code has the potential to turn into a slippery slope for media freedom if it is not interpreted and applied restrictively by the Press Ombudsman.
It is clear from the Constitution that the right to freedom of expression does not include the right to engage in hate speech. However, hate speech as defined in the Constitution is limited to speech that advocates hatred based on religion and incites violence against people based on their religious beliefs. Speech that criticises, insults or makes fun of a religion without advocating hatred and violence is not covered by the definition of hate speech in the Constitution. The Press Code therefore goes much further than the Constitution by protecting religious beliefs from ‘denigration’.
This clause of the Press Code will prove difficult to enforce in light of the inherently subjective nature of a decision on where to strike the balance between free speech and religion. The views of a deeply religious person about where the line should be drawn may differ substantially from the views of an atheist. Given the imprecise nature of the evaluation, it would have been best to leave the issue to editorial discretion and let the public vote with their feet if they decide that a particular publication is offensive.
In the case of Islamic Unity Convention v Independent Broadcasting Authority (IBA), the Constitutional Court struck down a clause of the Code of Conduct for Broadcasting Services that prohibited speech that was “likely to prejudice relations between sections of the population”. The Islamic Unity Convention ran a community radio station that broadcast a programme during which the presenters stated that the number of people who died in the holocaust was overinflated and that the people who died in concentration camps died of natural causes. After a complaint by the South African Jewish Board of Deputies, the IBA found the radio station guilty of broadcasting material that damaged relations between people. The Constitutional Court decided that the prohibition in the code was not a justifiable limitation on free speech as it was overbroad and it was difficult for broadcasters to anticipate in advance what type of speech was not permitted.
The decision in the Islamic Unity case demonstrates that, while respect and consideration for people of different faiths is an important aspect of building a nation where diversity is celebrated, policing such respect is potentially unwise and difficult to achieve in a manner that does not result in stifling free speech.
When faced with a complaint under this clause of the Code, the Ombudsman would do well to remember that, as the Constitutional Court cautioned with respect to the Islamic Unity case, freedom of expression also extends to ideas that are offensive, disturbing or shocking. This clause must therefore be reserved for the most serious cases where there is clearly no public interest served by the publication of the offensive material.
This post was first published in the March 2014 issue of The Media magazine.