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A complaint was lodged by Media Monitoring Africa against the Broadcasters eNCA and etv for broadcasting an interview with a certain Mr David Icke, also known as a conspiracy theorist, whose view is that the Covid-19 pandemic is a hoax and that “there is no virus.” At issue here is the limitation of freedom of expression. The Tribunal found that comments made during the interview were not justifiable nor reasonable because the misinformation spread by the interviewee could cause harm to the people of South Africa. The Tribunal found a contravention of Clause 28.2.2 of the Subscription Broadcasting Code and Clause 13 of the Free-to-Air Broadcasting Code respectively and the complaint was upheld.

The Tribunal found that the interview did not constitute a discussion of controversial issues of public importance and therefore Clause 28.3.1 and Clause 13(1) of the Codes, respectively, were not applicable and thus not contravened. Clause 13 of the Subscription Broadcasting Code pertaining to material unsuitable for children was not contravened because the broadcast on eNCA, although broadcast at 20:30, was after the watershed. Finally, the BCCSA has no jurisdiction to order the removal of a programme from a website of the Broadcaster.

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Media Monitoring Africa (“MMA”) was admitted as an amicus curiae by order of this Court on 17 July 2020, and raises three main issues of relevance to this matter: First, the need to bear in mind the threat of disinformation in striking the appropriate balance between the right to freedom of expression and the rights to dignity and reputation. Second, the proper approach to be taken towards the notion of the “reasonable reader” in the context of social media. Third, the importance of effective and expeditious procedures and remedies in defamation proceedings relating to online publications.

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MMA – Complaint to the BCCSA (as sent)

Media Monitoring Africa, represented by Power Singh Inc., has been admitted as an amicus curiae (friend of the court) in the confirmation proceedings before the Constitutional Court of South Africa in amaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others CCT278/19 (State Surveillance Case).

The matter concerns the constitutionality of various provisions of the Regulation of Interception of Communications and Provision of Communication Related Information Act, 2002 (RICA), which authorises state surveillance. This creates a chilling effect on the right to privacy and associated human rights.

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This matter concerns the careful balancing of the rights to free expression, dignity and equality in the context of hate speech legislation. In particular, this
Court is called upon to interpret the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“the Equality Act”) in a manner that appropriately balances and best protects and promotes these rights. Media Monitoring Africa (“MMA”), an organisation which advocates for freedom of expression and supports the responsible free flow of information to the public
on matters of public interest, has been admitted as an amicus curiae in this matter. MMA participates in these proceedings in an effort to assist the court in interpreting section 1 0( 1) of the Equality Act in a constitutionally compliant manner. Mindful of its role as an amicus, MMA does not enter the fray on the application of the Equality Act to the facts of this particular case.

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The first judgment penned by Mhlantla J and concurred in by Mogoeng CJ, Khampepe J, Ledwaba J, Madlanga J, Nicholls J and Theron J, held that the overarching purpose of section 154(3) of the CPA is child protection; protection from the potentially harmful effects of publication of their names and identities as a result of being implicated in criminal proceedings. Since this protection is only afforded to child accused and witnesses, there is a lacuna in the law as it pertains to protecting child victims in criminal proceedings. The first judgment held that the exclusion of child victims in section 154(3) limited the right to equality, as it constitutes an arbitrary differentiation that does not offer equal protection and benefit of the law. This lacuna also infringes the best interests of the child and their rights to privacy and dignity, which limitations were neither reasonable nor justifiable. It declared section 154(3) constitutionally invalid to the extent that it does not protect the identity of child victims in criminal proceedings. Accordingly, the declaration of invalidity was confirmed. Parliament was given 24 months to cure the defect. In the interim, a reading-in to section 154(3) was made.

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In February 2019, Media Monitoring Africa and SOS: Support Public Broadcasting Coalition have written a letter to the Presidency and Parliament demanding a timetable reflecting the appointment process for the new SABC Board members. Read the letter here.

This letter remains unanswered and on April 2 a follow up was sent: 2 April follow up letter. 

Another letter was sent on 10 April.

For more information contact,

William Bird (williamb@mma.org.za)

Duduetsang Makuse (duduetsang@soscoalition.org.za)

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The legal document detailing the reason for search at  Jacques Pauw’s home, Cape Town on 28/02/2018.

SSA

Regulations for the Judicial Commission of Inquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector including Organs of State

Media Monitoring Africa is a non-profit organisation which promotes ethical and fair journalism that supports democracy and human rights. MMA seeks to protect the constitutional right to freedom of expression and the media and
advocates for the free flow of information to the public on matters of public interest.

MMA is aware that the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State (“the State Capture Commission”) is due to begin imminently. MMA is deeply concerned by certain clauses in the Regulations for the State Capture Commission published in Government Gazette 41436 of 9 February 2018 (“the Regulations”), which appear to limit media freedom, the right to freedom of expression and the right to access information.

Read MMA’s letter to the President, and the response, below.

Letter from WW to President of the Republic of South Africa 20180227

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Judgement was handed down today regarding the appointment powers of the executive positions at the SABC. The judgement is a massive win for transparency, accountability and good governance at the SABC.

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Among others, one of the key elements of the judgement is found in paragraph 3 of the order, stating that “the executive members of the Board are to be appointed solely by the non-executive members of the Board without any requirement of approval by the Minster”.

Find the full judgement below.

The following case concerns the President’s failure to appoint non-executive Directors to the Board of the SABC. MMA and SOS believe that the delay in the appointment of these crucial positions further exacerbates the crisis at the SABC. MMA and SOS have therefor submitted a legal application for these appointments to be made.

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The argument proposes a three question test approach to determining Hate Speech.
This includes:
  1. Does the piece amount to advocacy of hatred that is based on race, ethnicity, gender or religion? If not, the complaint must be rejected.
  2. If so, does the piece constitutes incitement to cause harm? If not, the complaint must be rejected.
  3. If so, is there some overarching public interest that justified the publication of the piece? If so, the complaint must be rejected.
We are currently awaiting ruling on the appeal case.

On the 18th May, 2017, Media Monitoring Africa appeared in court as Amicus to the Van Breda/Media 24 and Others case. The case dealt with the issue of live streaming the murder trial of Henry Van Breda.

In mid August, the National Director of Public Prosecutions gave note that it was filing for application for leave to appeal in terms of rule 19. Download papers below.

On the 8th November, 2017, the Constitutional Court dismissed the leave to appeal application by the National Director of Public Prosecutions. See added document (order) attached below.

In early 2015, there was a story in the media about a child victim known as Zephany Nurse, although this is not her real name. A woman had allegedly kidnapped her from the hospital in which she was born and subsequently raised her as her own child. It was only once Zephany was 17 years and 9 months of age that her biological parents found her and that DNA tests proved she was their child.

The facts of the story were unusual and as such, the media wanted to publish all the information about it, including the identity of the child concerned. However, the child did not want her identity to be made public.There is a law that protects the identity of children who are witnesses in criminal matters. The law does not specifically say that the law applies to children who are victims in criminal matters. It is important to establish whether a child who is a victim of a crime is protected by this law or not.

For several decades, this law was interpreted to mean that the protection of the child’s identity lasts after they turn 18 years of age. More recently, however, the media has begun to interpret the law to mean that when children turn 18 years of age, they are no longer protected by that law and their identity can be made public. Journalists were threatening to make Zephany’s identity public once she turned 18 years old. She obtained the services of lawyers at the Centre for Child Law, a law clinic. On 21 April 2015, the court gave an order which prohibited the media from publishing her identity. This protection continues, pending a court hearing which will determine the ambit of the law. The hearing occurs in the Pretoria High Court on Thursday 9 January 2017 and Friday 10 January 2017.

Media Monitoring Africa (MMA), the SOS Support Public Broadcasting Coalition (SOSA) and the Freedom of Expression Institute (FXI) lodged papers with the Complaints Compliance Committee of ICASA over the SABC’s decision to ban coverage of violent protests/destruction of public property.

We believe the decision to be unlawful and in clear violation of the Broadcasting Act, the SABC’s licence conditions and the SABC’s revised editorial policies. The SABC seem dead set against the possibility of changing their mind (See: http://www.thenewage.co.za/sabc-wont-back-down-on-decision/) which is why we have opted to go the route of a legal challenge to the Complaints Compliance Committee.

William Bird, Director of MMA said, “The decision has clear negative implications, for media freedom and yet we have been given no indication that the decision followed due process. Given the gravity of the issue, we would have hoped for a clearly argued principle backed up by strong supporting evidence, instead we have hubris and confusion.“

Supporting the complaint, SOS Coordinator, Sekoetlane Phamodi, said, “We are really disappointed that one of the first acts drawing on the Revised Editorial Policies see the SABC undermine its own independence and inject a culture of self-censorship within our national public broadcaster. Indeed, we believe the Revised Editorial Policies themselves need to be struck down.”

“As the FXI, we too are concerned about the impact the decision will have for ordinary South Africans and their right to freedom of expression and access to information. Not only does the banning take us back to an SABC of the 80’s, it is also afundamentally flawed reasoning.” Sheniece Linderboom Head of the FXI Law Clinic.

As the decision has been taken with immediate effect we have asked that the matter be heard on an urgent basis.

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