Freedom of Expression a Comparative Analysi

This article focuses on a comparative analysis on freedom of expression between South Africa, Malawi, Zambia, Algeria, China, Japan, Switzerland, Germany, Russia, Canada and the USA. It discusses the meaning of the right to free expression and the intersection between freedom of expression and other fundamental rights. It also explores the possibility to limit the parameters of freedom of expression and argues that such possibility is already foregrounded in the constitution.

The emerging jurisprudence on freedom of expression in South Africa does not support the thesis that there is a need for a South African approach to freedom of expression. Hierdie artikel vergelyk vryheid van spraak in Suid-Afrika, Malawi, Zambie, Algerie, China, Japan, Switserland, Duitsland, Rusland, Kanada en die VSA. Die betekenis van vryheid van spraak en die interaksie tussen vryheid van spraak en ander fundamentele regte kom aan die orde. Dit ondersoek ook die moontlikheid om vryheid van spraak in te perk, en gaan van die standpunt uit dat hierdie moontlikheid reeds in die Grondwet gestel word.Die ontluikende tendens in Suid-Afrika ondersteun egter nie die aanname dat daar ‘n behoefte is aan ‘n Suid-Afrikaanse benadering tot vryheid van spraak nie. Key words: balancing rights, constitution, freedom of expression, jurisprudence, limitation, self-regulation.

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* Mandla Seleoane [[email protected] ac. za] is a research specialist with the Human Sciences Research Council (Governance and Democracy), Private Bag x41 Pretoria, Tel. +27-12 3022325, Fax +27-12 3022216.This article is based on a presentation made at a South African National Editors’ Forum (Sanef), the South African Human Rights Commission (SAHRC) and the African Chapter of the African Renaissance (AR) conference.

Seleoane: Freedom of expression 233 Defining freedom of expression The nature of the problem Freedom of expression is to a large extent a politico-legal construct. Therefore it would be advisable to start the inquiry into what it is from the law, which can be seen as a distillation of political choices by those who have the power to make law (Pashukanis, 1978; Tigar ; Levy, 1977).A cursory glance at constitutional texts would reveal, however, that we could not draw much assistance from them by way of defining freedom of expression. What constitutions tend to do is merely to proclaim the right to freedom of expression and then, if we are lucky, indicate what it includes. To proclaim a right is not the same thing as defining it. Nor is an indication of what the right includes or excludes useful if what we want to know is what the right is.

What is included and excluded from a right must be distinguished from what the right is. It may be argued plausibly that, in order to arrive at what is included or excluded, one has to have a definition of the right as a precondition. Otherwise the correctness in including certain things and excluding others is open to challenge. But even if it turns out to be correct, the correctness might well be fortuitous. I suggest that in the absence of a definition of freedom of expression in the constitution, it remains now to approach such definition by way of inference.An attempt to define freedom of expression Section 16(1) of the South African constitution provides that everyone has the right to freedom of expression.

And then it indicates that included in that right is freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research. What I suggest, now, is that one must infer a definition of freedom of expression from this provision. The definition must necessarily be influenced by the social condition antecedent to the proclamation of the right.Johann van der Westhuizen writes ‘the urge to say something is human. So too, unfortunately, is the reluctance to listen to others’ (Van der Westhuizen, 1994).

The Declaration des droits de l’homme et du citoyen, 1793, noted with reference to the right to express one’s opinion and thought that the ‘necessity of proclaiming [this right] presupposes either the existence or the recent memory of despotism’ (Marx, 1975). 1 The question I am raising here is analogous with the Hegelian critique of Locke’s philosophy on the ‘natural rights of man’.Hegel insisted that the origins of something must be distinguished from what that thing is (Cobbah, 1987). 234 Ecquid Novi The point Van der Westhuizen makes is that people are so constituted that they want to say something, whatever the subject might be. Unfortunately they are also so constituted that they do not wish to listen to other people’s points of view. Then the Declaration des droits de l’homme et du citoyen tells us that often, when people do not like to hear certain points of view, they suppress them and punish those who give expression to them.

What section 16(1) of the constitution says, then, is that we are free to express our views on any matter whatsoever, irrespective of the fact that some people might not like them. It guarantees that we shall not be punished for giving expression to our views, even if others do not like them. It conveys that we can expect the state to come to our aid if anyone at all should try unconstitutionally to deny us the space to express our views freely on any subject.It seems to follow, then, that we could define freedom of expression as the constitutional promise that we shall not be punished or any wise than in the ways set out in the constitution, be impaired in our right to make our views known. Reading the right as it is formulated in the constitution As indicated above, section 16(1) of the constitution proclaims the right and then indicates what is included in it, namely freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.

How must one read this? In an undated paper, Linnington reiterates the constitutional provisions on freedom of expression and then states: Freedom of the press and other media’ implies that this freedom is in addition to the other freedoms listed in article 16. Therefore the press have the right to receive or impart information or ideas in addition to being free in other undefined aspects or areas, aspect or areas which may become obvious when circumstances arise where freedom would be appropriate but which could not be defined in advance.I take the view that, in formulating the right in the constitutional words used, the intention was not to confer on the media additional unspecified rights. The constitution seems to me rather clear — it says the right to freedom of expression includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; academic freedom and freedom of scientific research. Freedom of the media, therefore, is part of the definition of freedom of expression.

Outside of freedom of expression as it is contained in section 16 of our constitution, it is hard to see what other freedom our media might claim. Seleoane: Freedom of expression 235 Had our constitution intended to communicate a different and separate right by freedom of expression from the rights it lists as being included in it, it was possible to articulate those rights separately. The constitution of the Republic of Malawi, for instance, does just that. It provides in section 35: ‘every person shall have the right to freedom of expression’.And then in section 36 it provides: ‘the press shall have the right to report and publish freely, within Malawi and abroad, and to be accorded the fullest possible facilities for access to public information’. Allowing for the fact that there can be no airtight boundary between the right protected in section 35 and the one protected in section 36, it seems nevertheless clear that Malawi sees the two sets of rights as different and separate.

In the first right, everyone is covered, including the press, and presumably it does not matter what the medium is in which you express yourself.The second right covers only the press – and one must hope electronic media as well. On the face of the constitution, therefore, the press is protected in what it publishes — at home or abroad — but not necessarily every person. On the face of the constitution, the press is entitled as fully as possible to access public information, but not necessarily every person. The reach of freedom of expression I would like, under this subheading, to discuss two considerations, namely, the distinction between freedom of expression and freedom of speech, and the permeation of other rights by freedom of expression.Expression or speech? The debate about whether we should have freedom of expression or of speech has not really captured the imagination of South Africans.

Partly, that is probably because our constitution answered the question for us and therefore it would serve little or no useful purpose to entertain the debate. Partly, however, I think that the explanation is our intellectual laziness for, in any event, it would have been necessary to have had the debate ahead of the constitution-making process.Although there is a sense in which the debate is academic, given that the constitutional choices have already been made, I consider it nonetheless important to raise the matter still. My thinking is that, to the extent that we have to debate the question whether limitations on freedom of expression are desirable, the distinction is important to draw. Further, if we are going to raise the question whether our approach to freedom of expression should not perhaps be revisited, we may as well canvass the entire gamut of issues involved in that question.Section 15 of our interim constitution provided that ‘every person shall have the right to freedom of speech and expression .

.. ‘. Therefore it would not have mattered whether we were concerned with speech or expression: both were 236 Ecquid Novi protected. Our current constitution, as we have noted, protects freedom of expression. Since, however, expression includes speech, there is once again no problem.

We can note that the 1st amendment to the USA constitution speaks about speech and not expression.In practice, however, that has not made a difference since the courts have placed a broad construction on speech, so that expression is also thereby protected (United States v Cruikshank; Hague v Committee for Industrial Organization; Cox v State of New Hampshire; Brown v Louisiana). What, now, is the problem? Bracken argues that if a rigorous distinction is maintained between speech and expression, it might never be necessary to limit speech. His reasoning is that the law is primarily concerned with deeds, rather than words. He argues that even in those rare circumstances where the law is concerned with words – e.

. perjury – it conceives of those words as acts and therefore stipulates stringent requirements and rituals that must be satisfied before the words can be punished. Therefore, he concludes, free speech activists should concern themselves with speech, and steer clear of freedom of expression (Bracken, 1994). Freedom of expression contains a component of action and opens us up to the risk that the authorities might rightly wish to visit the action component with punishment. In that process, there is more than a good chance that speech might suffer too.But if we had confined ourselves to speech, we might never be open to the risk.

Whether, of course, the distinction would eliminate state interference with freedom of speech is debatable. It is not, however, a totally hopeless case. In a minority opinion of the court in Communist Party v Subversive Activities Control Board Justice Hugo Black opined: The founders [of the USA] drew a distinction in our Constitution which we would be wise to follow. They gave the Government the fullest power to prosecute overt actions in violation of valid laws but withheld any power to punish people for nothing more than advocacy of their views.This is a distinction, I imagine, we might well wish to draw in debating whether freedom of expression should get limited, and to what extent.

This idea will be explored in later parts of the body. Freedom of expression permeates other rights Although the constitution proclaims freedom of expression in a particular clause, I think that, in giving content to that right, one must bear in mind that the right touches many other rights. I’d suggest that the following rights would be difficult, virtually impossible to enjoy if we did not have freedom of expression: Seleoane: Freedom of expression 237 freedom of religion, belief and opinion (section 15 of the constitution); • assembly, demonstration, picket and petition (section 17 of the constitution); • freedom of association (section 18 of the constitution); • political rights (section 19 of the constitution); • freedom of trade, occupation and profession (section 22 of the constitution); • labour relations (section 23 of the constitution); • education (section 29 of the constitution); • language and culture (section 30 of the constitution); • cultural, religious and linguistic communities (section 31 of the constitution); • just administrative action (section 33 of the constitution); • access to courts (section 34 of the constitution); and • arrested, detained and accused persons (section 35 of the constitution). There is a special relationship between freedom of expression and the right of access to information contained in section 32 of the constitution. So important is the relationship, the right of access to information is already built into the right to freedom of expression — freedom of expression includes the right to receive information. In Malawi, the right of access to information is built into freedom of the press (Section 36).

In Switzerland, the right of access to information is grouped together with freedom of expression under the heading freedom of opinion and information (Section 16).In discussing the desirability of limiting freedom of expression, it seems to me that one has to bear in mind the intersection of this right with many other fundamental rights. Limiting the parameters of freedom of expression The brief, here, is couched in cautious and tentative terms – i. e. the desirability to limit the parameters of freedom of expression.

I propose to divide the discussion into two parts, namely, the status quo and the desirability to limit freedom of expression. The status quo Limitations to freedom of expression can be discussed broadly under four headings, namely constitutional exclusions, general limitations clause, state of emergency, and constitutional balancing of rights. 238 Ecquid NoviConstitutional exclusions Section 16(2) of the constitution provides that freedom of expression does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm. How one must read this is of course open to debate and it might well be apposite to bear in mind a remark once made by Justice Holmes: ‘the prophesies of what the courts will do in fact, and nothing more pretentious, are what I mean by law’. And another remark by Justice Frank: ‘[before there is a court decision on any issue], the only law available is a guess as to what a court will decide’. Derham 1964) Therefore, in placing a construction on this clause, we would probably not be doing much more than guessing how the courts might read it.

It seems to me obvious that propaganda for war, howsoever ill defined, is not constitutionally protected. Therefore if our expression vies in that direction, it was never constitutionally protected. So too is it with incitement of imminent violence. I am not sure that the matter is quite so clear with reference to the remainder of section 16(2). At a first reading, it would appear that advocacy of hatred based on race, ethnicity, gender or religion is not constitutionally protected. A second reading might suggest, though, that such advocacy is denied constitutional protection only if ‘it constitutes incitement to cause harm’.

It seems to me significant that the indicators ‘race’ ‘ethnicity’ ‘gender’ and ‘religion’ are joined by the disjunctive connector ‘or’. It would appear, therefore, that they do not have to be present all of them in order for the expression to be denied constitutional protection. Any one or combination of them will do. All of them are then joined to the remainder of the clause by the conjunctive ‘and’. That seems to me to convey the notion that advocacy of hatred based on the said indicators is denied constitutional protection if it constitutes incitement to cause harm.

If a situation can be conceived, therefore, where a person advocated hatred based, for instance, on religion, but the advocacy did not constitute incitement to cause harm, it would seem hat such advocacy should not be denied constitutional protection. It is evident, however, that freedom of expression comes to us already limited by the very clause of the constitution that proclaims it. The general limitations clause Section 36 of the constitution provides for the limitation of any right, including freedom of expression, in terms of a law of general application. The limitation, however, must be ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’. Further, the following must be taken into account in limiting any right in terms of section 36: Seleoane: Freedom of expression 239 • • • • • he nature of the right being limited; the importance of the purpose of the limitation; the nature and the extent of the limitation; the relation between the limitation and its purpose; and the possibility of achieving the said purpose through less restrictive measures.

It is possible, therefore, to limit freedom of expression if one satisfies the stipulations contained in section 36 of the constitution. In fact this has already been done. The Regulation of Gatherings Act, controversial as it is, does precisely that. Section 8(2), (3), (4) & (5) of the Act limits the modes in which participants in a demonstration or gathering can express themselves. Hate speech is specifically legislated against.

I would suggest that, with reference to freedom of expression, under ‘the nature of the right’ one would have to take into account, in addition to everything else, the issues I have referred to under section 2. 4 hereof. Therefore, in limiting freedom of expression, I would think that it is important that one is extra careful to distinguish between speech and action, limiting speech only when it is absolutely necessary. I do not subscribe to the view that words as such can never be harmful. Where, for instance, words can be connected directly and immediately to harm, actual or potential, I would imagine that they should not be protected.

An example is where I command a trained dog to attack a person in circumstances where there is no legal justification.I do not think that such words should be protected, and in my view it is not necessary to conceive of them as an act in order to deny them protection. Another known example is the person who shouts ‘fire’ in a packed stadium, when there is in fact no fire. Outside of such situations, however, I would suggest that one must be very careful not to place undue constraints on speech. And then I would also suggest that, given the fact that freedom of expression is implicated in the enjoyment of so many other rights, one really needs special arguments for circumscribing it.

And then one needs to make extra careful calculations in order to ensure that, in circumscribing it, one keeps clear of the other implicated rights as much as possible.Which means, in practice, that one will be careful to tamper with freedom of expression as little as possible since, in tampering with it, one is likely to touch other rights as well. State of emergency Section 37 of the constitution envisages that a state of emergency might be declared in South Africa and that state of emergency legislation might be enacted. In terms of section 37(4), such legislation may derogate or remove some rights 240 Ecquid Novi that are proclaimed in the bill of rights. However the constitution declares certain rights as ‘non-derogable’.

Such rights cannot be removed even under emergency. Freedom of expression is not one of them.Therefore freedom of expression may be removed under emergency. However that may be, any such derogation must be ‘strictly required by the emergency’ – section 37(4)(a). The legislation introducing the derogation must be consistent with SA’s obligations under international law relating to states of emergency — section 37(4)(b)(i).

Therefore the derogation is challengeable in a law court. Constitutional balancing of rights A cursory glance at the list of fundamental rights listed in chapter two of our constitution will instantly suggest that it is very easy for some of them to collide. The tension among the rights is both inter- and intra-rights. Whilst that is so, the courts ave said over and over again that there is no hierarchy to which to appeal when the rights clash. The courts have often said, when such conflict arises, that the question as to which right must prevail should be determined on a case-bycase basis by balancing the rights involved and the interests they protect.

My reading of the Vienna Declaration suggests that one must first try and make the rights work together as a system before seeking to choose one over another in any given set of circumstances. Should the rights prove irreconcilable in any given case then, as I understand the Vienna Declaration and the judgements of the courts, one has to make a choice.But the choice is not to be made a priori or, to put it somewhat differently, the choice is not metaphysical. It is made with reference to concrete and specific circumstances and facts. One listens to the evidence and to the arguments and then decides that in this case right x must prevail over right y. Consistency (the precedents system) then requires that in all future conflicts involving the same rights and where the facts are materially the same, right x must prevail over right y.

But this does not mean that right x is more important than right y. Therefore it is possible that under different circumstances and with different facts, the opposite decision might be arrived at.National Media Ltd ; Others v Bogoshi, for instance, was widely celebrated as a victory for freedom of expression. To the extent that it struck down the doctrine of strict liability, it was decidedly a victory for freedom of expression. However that does not mean that freedom of expression now takes priority over one’s right to one’s good name.

Should Bogoshi (the plaintiff in the initial case) have succeeded to prove all the elements of defamation in terms of prevailing notions of justice, the question might be answered totally differently (Gardener v Whitaker). The effect is that there is an inbuilt mechanism in the constitution in order to limit the application of all rights, including freedom of expression.Therefore one is limited in what one can say by the fact that others have rights that must not be Seleoane: Freedom of expression 241 impinged by the contents of one’s expression. Indeed, the drafters of the constitution attached so much value to some of these rights that they placed a responsibility on parliament to pass legislation in order to protect them. The Promotion of Equality and Prevention of Unfair Discrimination Act, is one such piece of legislation, and limits what we might give expression to. The desirability to limit freedom of expression It is clear, first, that certain limitations have already been placed on freedom of expression.

These are, to start off, already built into the constitution – section 16(2).Then, next, there are statutory limitations on freedom of expression in the form of, inter alia, the Regulation of Gatherings Act and the Promotion of Equality and Prevention of Unfair Discrimination Act. The application of the bill of rights by necessary implication also limits the scope of freedom of expression in requiring rights to be balanced against one another. The common law, in protecting people’s right to their good name, also qualifies freedom of expression. It is also clear that further limitations on freedom of expression are possible pursuant to section 36 of the constitution. If the question were, therefore, whether such limitations are possible, our answer should be in the affirmative.

The question is, however, whether they are desirable. We should possibly say that the answer to that question is a matter of value judgement.That being so, we should possibly say that an attempt must not be made to answer the question abstractly. We should say that the doors are wide open for the limitation of freedom of expression and that the justification therefore is a matter already foregrounded in the constitution. Therefore, in short, the onus falls squarely on who seeks the limitation to make out a case for it. If the case is clear, I think that we should keep an open mind and concede the desirability.

Different approaches to freedom of expression My brief is to explore how different countries have approached freedom of expression. I have listed the countries that I propose to look at in the introduction.Although it would be instructive to explore their judgements as well on the subject, that could easily constitute another paper. Reference has nevertheless been, and will still be made to some judgements. South Africa I have already discussed South Africa, and there is therefore no need to deal with the matter in this section again.

I shall, however, in outlining the approaches of other countries, attempt to compare those with the situation in South Africa. 242 Ecquid Novi Malawi Similarly, I have already made reference to Malawi in a previous section. It bears repetition, however, that in Malawi freedom of expression and freedom of the press are not dealt with as if they were one and the same right or that one right is a part of the other.Thus freedom of expression is covered in section 35 and freedom of the press in section 36 of their constitution. Further, whereas South Africa explicitly extends freedom of expression to media in general, the Malawian constitution speaks only about freedom of the press. Of particular interest is the constitutional directive, in Malawi, that the ‘fullest possible facilities for access to public information’ be accorded the press.

Section 20(1) of the Malawian constitution prohibits discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.And then section 20(2) mandates the legislature to pass legislation to proscribe, among others, the propagation of such practices. Zambia Article 20(1) of Zambia’s constitution provides for freedom of expression in the following words: Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression-, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.Article 20(2) provides: ‘Subject to the provisions of this Constitution no law shall make any provision that derogates from freedom of the press. ‘ Article 20(3) states: Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or (b) that it is reasonably required for the purpose of protecting the reputation, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confi- Seleoane: Freedom of expression 243 (c) ence, maintaining the authority and independence of the courts, regulating educational institutions in the interests of persons receiving instructions therein, or registration of, or regulating the technical administration or the technical operation of, newspapers and other publications, telephony, telegraphy, posts, wireless broadcasting or television; or that imposes restrictions on public officers; and except so far as that provision or, the thing done under the authority thereof is shown to be reasonably justified in a democratic society. In some significant respects Zambia’s protection of freedom of expression is very different from South Africa’s.

Whilst South African law knows the concept of consent as a ground of justification, it does not seem to be part of our constitutional law that a person could consent to his/her freedom of speech being curtailed.Indeed, consent as a ground of justification in respect of infringement on people’s rights is carefully circumscribed in South Africa, so that the fact alone that a person has consented does not automatically exclude wrongfulness or culpability. Whilst the Zambian constitution directs that no legislation be passed that derogates from freedom of the press, it all but strips that protection to the bone in the same breath. There is greater resemblance between Zambian constitutional law and Canadian constitutional law on this matter than South African Constitutional law. A Zambian court deliberating a constitutional challenge to a law limiting freedom of the press must inquire into the legislature’s assessment of the very statute they have enacted and which is being challenged.

If the legislature has written into the statute that it is reasonably required in order to achieve the things set out in article 20(2), then the challenge must fall away. It stands to reason that the legislature will be careful, in enacting law that might be challenged, to write this opinion into the law. It is interesting that a consideration which might be an important qualification to the legislature’s power to in effect interpret its own laws — namely, that the restriction must be shown to be reasonably justified in a democratic society — seems to be limited in its applicability to the restriction of the freedom of expression of public officers.Algeria Article 41 of the Algerian constitution provides that ‘freedom of expression, association and meeting are guaranteed to the citizen’. Article 38(3) stipulates ‘the seizure of any publication, recording or any other means of communication acid can only be done in pursuance of a warrant’.

244 Ecquid Novi I would suggest that, barring the fact that freedom of association and of meeting are provided for together in one clause as freedom of expression, Algeria’s guarantee of freedom of expression is not very different from ours. One must hope that the omission to mention freedom of the media is merely an indication that it is taken care of under the guarantee of freedom of expression.An interesting difference between our situation and that of Algeria is that freedom of expression in Algeria is expressly guaranteed to citizens, whereas in South Africa it is guaranteed to non-citizens as well. In that respect, South Africa’s position is comparable with that of the USA. Another interesting difference is that our constitution does not specifically deal with the seizure of documents, that being left for legislation, which legislation must be tested against the constitution. China Article 41(1) of the Chinese constitution reads: Citizens of the People’s Republic of China have the right to criticize and make suggestions to any state organ or functionary.

Citizens have the right to make to relevant state organs complaints and charges against, or exposures of, any state organ or functionary for violation of the law or dereliction of duty; but fabrication or distortion of facts for the purpose of libel or frame-up is prohibited. Article 41(2) reads: The state organ concerned must deal with complaints, charges or exposures made by citizens in a responsible manner after ascertaining the facts. No one may suppress such complaints, charges and exposure, or retaliate against the citizens making them. These enactments are written under the heading Freedom of Speech. Article 47, under the heading Research, stipulates: Citizens of the People’s Republic of China have the freedom to engage in scientific research, literary and artistic creation, and other cultural pursuits.The state encourages and assists creative endeavours conducive to the interests of the people that are made by citizens engaged in education, science, technology, literature, art, and other cultural work.

Seleoane: Freedom of expression 245 Article 51 enacts: The exercise by citizens of the People’s Republic of China of their freedoms and rights may not infringe upon the interests of the state, of society, and of the collective, or upon the lawful freedoms and rights of other citizens. One notices, first, that, although the Chinese constitution has the heading freedom of speech, it does not, as such, guarantee freedom of speech or expression.It is careful to mention specifically the rights that are protected — being the right to criticise, make suggestions, expose violations of the law or dereliction of duty, conduct scientific research and engage in cultural and artistic endeavours. I would suggest that there is a significant difference between freedom of expression as it is entrenched in our constitution and freedom of speech as it is articulated in the Chinese constitution. Then, like the Algerian constitution, freedom of speech, as much of it as can be gleaned from the Chinese constitution, is guaranteed to citizens and not, perhaps, extended to non-citizens. I would think that there is also a significant difference between our constitution and the Chinese one in that we do not explicitly, constitutionally subordinate the interests of the individual to those of the state.

Nevertheless, there are some aspects in which the Chinese constitution seems to be more advanced than ours on the subject under consideration. Our constitution does not explicitly provide for the protection of people who expose wrongdoing on the part of government, that being left for legislation. Nor does it place a clear duty on government to investigate complaints brought against it and to take responsible action in respect thereof. Japan Article 21(1) of the Japanese constitution, under the heading communicative rights, provides: ‘freedom of assembly and association as well as speech, press, and all other forms of expression are guaranteed’.Article 21(2) reads: ‘no censorship shall be maintained, nor shall the secrecy of any means of communication be violated’.

Article 11(2) of the Japanese constitution proclaims that the fundamental rights listed in the constitution, including the right under consideration, are irrevocable and inviolable. I would suggest that the Japanese constitution is in advance of ours on the matter under review at least in two respects. First, our constitution, unlike that of Japan, does not explicitly outlaw censorship — I doubt whether it does at all. Second, our constitution does not explicitly make the rights contained in our bill of rights, including freedom of expression, irrevocable.Quite the contrary, it al- 246 Ecquid Novi lows both for their limitation (section 36) and for the derogation of some them (section 37). It is noteworthy that, whereas under section 33(1)(b) of the interim constitution it was specifically stipulated that, in limiting a right, its essential content would not be negated, this requirement was dispensed with in the current limitations clause.

In all other respects, however, I would suggest that we compare favourably with Japan on the matter under consideration. Switzerland Article 16(2) of the Swiss constitution reads: ‘all persons have the right to form, express, and disseminate their opinions freely’.Article 16(3) reads: ‘all persons have the right to receive information freely, to gather it from generally accessible sources, and to disseminate it’. Article 17(1) (2) & (3) provide respectively: • • • freedom of the press, radio and television, and of other forms of public telecasting of productions and information is guaranteed; censorship is prohibited; and editorial secrecy is guaranteed. Article 20 guarantees the freedom of scientific research and teaching.

Article 21 guarantees the freedom of art. The rights that are covered in our freedom of expression clause are thus all covered in separate clauses in the Swiss constitution. Therefore we compare, in those respects, favourably.However I think that Switzerland (like the Japanese) is ahead of us in outlawing censorship. In guaranteeing editorial secrecy, I have assumed that what they refer to is editorial independence and the non-disclosure of sources for journalists.

If that is indeed what is meant, then, once again, they are ahead of us. The Swiss, however, appear to be lagging behind us in relation to the provision for the accessing of information. In South Africa our facility to access information is not limited to ‘generally accessible sources’, whatever is meant by that. The problem of access to information, conceptually, does not arise in respect of sources that are generally accessible, but from those that are not.It is with respect to those sources precisely that are not generally accessible that one needs constitutional facilitation to access the information. We in South Africa, from the standpoint of the constitution, are better placed to access such information.

Whether, however, the Promotion of Access to Information Act does precisely that, is a matter open to debate. Germany Article 5(1) of the German constitution reads: Seleoane: Freedom of expression 247 Everyone has the right to freely express and disseminate his opinion in speech, writing, and pictures and to freely inform himself from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films are guaranteed. There will be no censorship.Article 5(2) reads: ‘these rights are subject to limitations in the provisions of general statutes, in statutory provisions for the protection of the youth, and in the right to personal honour.

‘ Article 5(3) reads: ‘art and science, research and teaching are free. The freedom of teaching does not release from allegiance to the constitution’. The German protection of freedom of speech is not very much unlike ours except in the respect that it prohibits censorship explicitly and that the youth is specifically mentioned with reference to the limitation of the right to freedom of expression. It also differs from our situation in that allegiance to the constitution is mentioned in respect of teaching and freedom of expression.Russia Article 29 of the Russian constitution provides that: (1) everyone has the right to freedom of thought and speech; (2) propagation or campaigning inciting social, racial, national or religious hatred and strife is impermissible. The propagation of social, racial, national, religious or language superiority is forbidden; (3) no one may be coerced into expressing one’s views and convictions or into renouncing them; (4) everyone has the right to seek, get, transfer, produce and disseminate information by any lawful means.

The list of information constituting the state secret is established by federal law; (5) the freedom of the mass media is guaranteed. Censorship is prohibited.Article 17(2) reads: ‘the basic rights and liberties of the human being are inalienable and belong to everyone from birth’. I would suggest once again that these provisions are not very unlike our own constitutional protection of freedom of expression bar the fact that Russia specifically prohibits censorship. If anything, they are much closer to our position in terms of the matters excluded from constitutional protection. In stating that basic rights, including freedom of speech, is an inalienable right that belongs to everyone from the moment of birth, Russia comes close to Japan’s explicit statement that these rights are irrevocable.

248 Ecquid NoviCanada Section 2(b) of the Canadian Charter of Rights and Freedoms reads: ‘everyone has freedom of thought, belief, opinion and expression, including freedom of the press and other means of communication’. Section 1 reads: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Section 33(1) reads: Parliament or the legislature of a province may expressly declare in an Act of Parliament or the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in Section 2 or section 7 to 15 of this Charter.Section 33(2) reads: An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. Insofar as it protects freedom of expression, the Canadian Charter of Rights and Freedoms is very similar to our own constitutional protection of the right.

The big difference is that in Canada the lawgiver can shield itself from judicial scrutiny, if the legislation should face constitutional challenge, simply by declaring in the legislation itself that the legislation is valid notwithstanding the fact that it might offend against the relevant sections of the charter.In practice this would mean that the legislature could pass a law and simultaneously sit in judgement of it. That it has not happened can only be attributable, as Greenawalt suggests, to ‘the hesitancy of the legislature to rely on the power of override given by Section 33′ (Greenawalt, 1995). Seleoane: Freedom of expression 249 USA Reference has already been made to the USA in a previous section and there is no need to repeat the matter here. Further reference will be made to the USA in the subsection below. Is South Africa unique? I would like to suggest that the text above shows that South Africa is not unique neither in the ways it protects freedom of expression nor in the ways it limits it.

I would imagine that the ways in which freedom of expression is limited in the Promotion of Equality and Prevention of Unfair Discrimination Act and in section 16(2) of the constitution, though possible to disagree on, are understandable given our history. Yet the discussion above shows that such limitations are known to other jurisdictions as well. A piece of legislation that is particularly controversial is the Regulation of Gatherings Act. I have a nagging suspicion that the government might also have found it suspect initially. This suspicion is based on the history of the legislation. The statute was assented to on the 14th of January 1994.

The interim constitution was assented to on the 25th of January the same year — i. e. 11 days after the statute had been assented to. When it was promulgated, the interim constitution protected a number of the rights touched by the statute in pretty much the same ways that the current constitution protects them. The statute was not gazetted until towards the end of 1996, and was only called into operation on the 15th of November that year. My guess, then, is that the delay in promulgating the statute might have been occasioned by the government’s hesitancy about whether it might survive constitutional scrutiny.

A number of people today still doubt that it might.It is noteworthy, however, that provisions similar to the suspected provisions of the statute have long since survived constitutional scrutiny in other jurisdictions with comparable constitutional protection to human rights. In Cox v State of New Hampshire the court opined that requiring notice to be given for a march or protest is not an abridgement of the 1st amendment and that it may in fact be a reasonable requirement in order to allow the authorities an opportunity to arrange for proper policing. It also stated that the right protected by the 1st amendment depends on the existence of social order without which liberty itself would be perilous.Similarly, the German court has ruled in B v R that a requirement to notify the authorities of a demonstration in advance is not an abridgement of the implicated right. However in Shuttlesworth v Birmingham the court cautioned that laws which allow an official to be guided by his/her own views on matters relating to public welfare, peace, safety, decency, good order, morals or convenience are a recipe for arbitrariness.

Therefore if a statute gives an official powers to regulate meetings, processions or demonstrations in such a 250 Ecquid Novi manner, they must be approached cautiously. In Clarke v Community for Creative Non-Violence the court thought that subjecting demonstrations to ‘reasonable time, place and manner restrictions’ is not an abridgement of the 1st amendment.In Sozialdemokratische Partei Basel-Stadt v Kanton Basel-Stadt the (Swiss) court expressed the view that a statute that outlaws the wearing of apparel at a demonstration that makes it difficult to identify a demonstrator is not unconstitutional. South African approach to freedom of expression? This question is supposed to arise, as I have understood my brief, from the ‘emerging jurisprudence’ on freedom of expression in South Africa. I am asked, therefore, to look at the emerging jurisprudence and then consider whether we do not, maybe, need a ‘South African approach’ to freedom of expression. The emerging jurisprudence My reading of the case law on this matter suggests that it is based on the constitution.

In fact, section 8(1) of the constitution stipulates clearly, ‘… the Bill of Rights applies to all law and binds … the judiciary’.If we supposed that there is a need for a South African approach to freedom of expression, the answer should probably be that there already is a South African approach and that it is reflected in the constitution. We should probably say that the emerging jurisprudence in South Africa reflects that approach.

We should respond, moreover, that a significant portion of the emerging jurisprudence in South Africa suggests that we cannot ignore the international law insofar as it has a bearing on human rights. Section 39(1)(b) of the Bill of Rights specifically requires the courts, in developing our jurisprudence, to take international law into account (Motala, 1996).If it were suggested, however, that the new approach should be different from the one already reflected in the constitution, we should probably respond that reliance for that proposition should not be placed on the emerging jurisprudence, since the emerging jurisprudence is based on the approach that is reflected in the constitution. It is conceivable, however, that the emerging jurisprudence may be foundational to the need to adopt a South African approach to freedom of expression in a negative sense. That is to say, we could conceivably take the view that the new jurisprudence is problematic in that it is un-South African.

In that case, I would suggest, we would need to overcome the constitution we have. Then we must hear the arguments that are made to that end. Seleoane: Freedom of expression 251The African Commission on Human Rights … paper To the extent that reference was made to the paper I read at the conference of the African Commission on Human and Peoples’ Rights on 23 November 2000 in my brief, I propose to summarise the main arguments put forward in that paper insofar as they have a bearing on this discussion. The paper argues, basically, that human rights, including freedom of expression are universal, normatively viewed. It also argues that a study of political documents produced in Africa do not support the thesis that Africans ever wanted freedom of expression to mean something different from what is generally understood throughout the world under that term.

It concludes that there is no basis in theory or in history for supposing that Africa understands something different by freedom of expression from the rest of the world. Nevertheless, the paper recognised that the application of any right will almost always be mediated, in practice, by cultural factors, which it is not incorrect to take into account, provided only we do not thereby denude the right. The adequacy of self-regulation The question posed here is whether self-regulation is adequate in dealing with the problems thrown up by the media’s exercise of freedom of expression. This is a question, once again, that does not seem to me to admit an abstract answer.To the extent, however, that we have to answer it without reference to specific complaints that may or may not have been made, I would suggest the following: • The Founding Bodies Committee of the Press Ombudsman consists of the South African National Editors Forum, the Forum of Editors of Community Newspapers, the South African Union of Journalists, the Media Workers Association of South Africa, the Newspaper Association of Southern Africa, and the Magazine Publishers Association of South Africa.

It is not clear why these constituents are not represented equally on the committee, and it is not clear at this stage how that unequal representation plays itself out in the decision-making processes of the committee. Whilst this is a matter that the conference might deliberate on, I shall avoid commenting on it.It is noteworthy, however, that the committee consists only of people involved more or less directly with the media. Whilst there may be good reasons for that, the suspicion must persist, as Professor Johann Van der Vyver once remarked in his critique of the police being required to monitor the police under the Terrorism Act, that we deal here with a situation where the jackal is given the duty to monitor the jackal. 252 Ecquid Novi It would be undesirable, no doubt, to have non-media people predominating a body dedicated to deal with problems arising from the practice of their career.

But there is also a clear case for having non-media persons sitting on the body. One advantage is that the body will have credibility, as I have already suggested.Another is that people in the same career are not always sensitive to the views and fears of people outside their career. This is why many research organisations would include non-researchers in their ethics committees. My view is that as it is currently constituted, the Founding Bodies Committee does not inspire confidence and would therefore be inadequate from a perceptions standpoint even if, in carrying out its functions, it were to prove impossible to fault.

• The Press Ombudsman’s constitution makes provision for wide representation on its appeal panel and specifically requires that the panel must be reflective of the community of South Africa. This appears to me to be a positive feature.The criteria stipulated for membership of the appeal panel require that members be oriented to human rights. This too, appears to me to be a positive feature. We may observe, though, that the members are specifically required to have a commitment to freedom of expression. It would be instructive to monitor whether, when a conflict arises between freedom of expression and another human right, their commitment to freedom of expression does not predispose them to resolve the conflict in favour of freedom of expression.

Ed Linnington, the Press Ombudsman, suggests that the success rate of resolving disputes that come to his office is 100%. It has to be, since the dispute is resolved either through negotiation or, that failing, through rulings.From this standpoint it would appear that the mechanisms are adequate. However it may well be that some of the rulings he makes leave some disaffected. To assess the adequacy of the mechanism against such disaffection would require that we listen to the arguments. • • Conclusion In view of the diversity of the issues I was requested to canvas, I do not think that it will serve any useful purpose to attempt to draw any conclusion.

I would suggest that, for conclusions, reference be made to the issues discussed, for there are some conclusions drawn there. Seleoane: Freedom of expression

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