Case Number: 47/2006 Date of Hearing: 16 NOVEMBER 2006

MXIT LIFESTYLE (PTY) LTD) COMPLAINANT vs

ELECTRONIC MEDIA NETWORK RESPONDENT

TRIBUNAL: Prof Kobus van Rooyen SC (Chairperson) Prof Sunette Lötter Ms Refiloe Mokoena-Msiza

For the Complainant: Mr. Reinhardt Buys from Buys Incorporated

For the Respondent: Mr. Dario Milo from Webber Wentzel Bowens, accompanied by Mr. George Mazarakis, Executive Producer, Carte Blanche, Ms Bonita Nuttall, Programme Acceptance Superivsor and Ms Eileen Sandrock, Commissioning Editor, Local Productions of M-Net.

Balance – cell phone infrastructure service provider clearly not implicated by broadcaster in cell phone abuses – mere inclusion of possible misuses not implicating MXit. MXit Lifestyle (Pty) Ltd vs M-Net, Case No: 47/2006 ______

SUMMARY

The complainant lodged a complaint with the Registrar that the respondent television broadcaster, in its magazine programme, Carte Blanche, had created the impression that it made it possible in its cell phone infrastructure service to young people to send pornographic pictures to each other. After the Registrar decided to entertain the complaint, the Chair referred the matter to a Tribunal to adjudicate. The Tribunal held that, given the constitutional imperatives involved in regard to reporting by the media on matters of public concern, it has no doubt that M -Net was entitled to cover the activities of MXit and that it should be given the appropriate

1 level of “breathing space” in connection with the broadcast of the insert as a whole, and the role played by MXit in particular. The insert is clearly structured in a manner that separates MXit from the abuses referred to; in any event, the thrust of the insert makes it plain that MXit provides infrastructural services only and cannot be held responsible for the consequences of cell phone abuse. There is no evidence that Carte Blanche's commentary was not based on true or identified facts. Similarly, there is no reason to believe that its comments were not made in good faith and honestly. It did not impute in any manner that MXit was acting illegally or was involved in the distribution of pornography or indecent materials. There is similarly no reason to disbelieve managing director Heunis' explanation of MXit's terms of use and his reaction to the possible abuse of cell phone technology as included in the insert. The mere fact that abuses are also included in the insert in no manner implicates MXit. The complaint was dismissed.

JUDGMENT

JCW van Rooyen (Chairperson)

Background

[1] The complainant lodged a complaint with the Registrar that the respondent television broadcaster in its magazine programme, Carte Blanche, had created the impression that it made it possible in its cell phone infrastructure service to young people to send pornographic pictures to each other. After the Registrar decided to entertain the complaint, I referred the matter to a Tribunal of the Commission to adjudicate.

[2] The defense of the Respondent was that it had the right and duty to inform the public and that, in any case, it had not contravened the Code, since it in no way conveyed expressly or impliedly that MXit made it possible for the youth or, for that matter anyone, to send pornographic pictures. It clearly emerged in the insert that MXit constantly warned users not to identify themselves to whomever they sent . Mr Buys, for MXit, however argued by dealing with other methods by way of which pornography could be sent by way of and the possibility of receiving pornographic material, created the impression that MXit was also involved. In summary, he said that all his client needed was a statement by Carte

2 Blanche that it did not intend to involve MXit in its accusation of cell phone pornography. His client has lost possible contracts as a result of the broadcast and also stood to lose future customers as a result of the broadcast.

Constitutional Principles Involved

[3] Section 16 of the Constitution of the Republic of South Africa provides that freedom of expression includes the right of every one to be informed. The Code of Conduct for Broadcasters states as follows in its Preamble, clause 4:

Freedom of expression lies at the foundation of a democratic South Africa and is one of the basic pre-requisites for this country’s progress and the development in liberty of every person. Freedom of expression is a condition indispensable to the attainment of all other freedoms. The premium our Constitution attaches to freedom of expression is not novel, it is an article of faith, in the democracies of the kind we are venturing to create.

Comment on matters of public importance must be balanced and shall be made on facts truly stated or fairly indicated and referred to.

Clause 35 of the Code provides as follows:

35.1 Licensees shall be entitled to broadcast comment on and criticism of any actions or events of public importance.

35.2 Comment shall be an honest expression of opinion and shall be presented in such manner that it appears clearly to be comment, and shall be made on facts truly stated or fairly indicated and referred to.

[4] The importance of freedom of expression on matters of public interest in an open and democratic society has been reiterated on numerous occasions by the Constitutional Court. Thus in South African National Defence Union v Minister of Defence & Another 1 O’Regan J stated:

1 1999 (4) SA 469 (CC) at para [7]; also see Khumalo v Holomisa 2002 (5) SA 401 (CC); Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC); Laugh It Off Promotions CC v South African Breweries International (Finance) BV 2006 (1) SA 144 (CC); South

3 “Freedom of expression lies at the heart of democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally.”

The importance of freedom of the press as a component of freedom of expression has also been explicitly recognised by the Constitutional Court and other Courts in South Africa. For instance, in Khumalo v Holomisa 2 the Constitutional Court stated as follows:

The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the rights to freedom of information are respected (emphasis added).

[5] The majority of MXit's complaints seek to attack the editorial control that was exercised in relation to the insert. It is an integral component of freedom of the media that any interference with editorial control will only be countenanced in a democracy if its exercise also amounts to a transgression of the Code of Conduct for Broadcasters, legislation or common law. Mere difference in opinion as to how the editor should have placed the material is not sufficient to found a transgression of the Code. This principle finds support in the USA Supreme Court3 and the European Court of Human Rights. The latter Court, in Fressoz and Roire v France4 held that the conviction of the journalists concerned for publishing the tax assessment of a public figure infringed their right of free speech:

“If, as the Government accepted, the information about [the public figure's] annual income was lawful and its disclosure permitted, the applicants' conviction merely for having published the documents in which the information was contained, namely the tax assessments, cannot be justified…. In essence, [freedom of expression] leaves it for journalists to decide whether or not it is necessary to reproduce such documents to ensure credibility.”

African Broadcasting Corporation Ltd v National Director of Public Prosecutions (Unreported: CCT 58/06; 21 September 2006).

2 Also see National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) at 1208; Government of the Republic of South Africa v 'Sunday Times' Newspaper & Another 1995 (2) SA 221 (T) at 227. 3 See Miami Herald v Tornillo 418 US 241 (1974). 4 (2001 31 EHRR 28.

4 The Court of Appeal in England, in Campbell v MGN Ltd5 (in a passage approved of by Lord Hoffmann in the House of Lords held:

Provided that publication of particular confidential information is justifiable in the public interest, the journalist must be given reasonable latitude as to the manner in which that information is conveyed to the public or his article 10 right to freedom of expression will be unnecessarily inhibited.

The importance of editorial control, and the freedom to choose the focus of a programme, has been also been emphasised in a number of decisions of this Tribunal. For example, in SA Dental Association v M-Net 6 the Tribunal stated as follows at para [19]:

“One of the objectives of the Code is to ensure fair and balanced comment on matters of public importance. This objective, however, must be reconciled amongst others with the respondent's right to freedom of speech, and its editorial prerogative to determine what in its view should form the content of the programme it broadcasts .” (emphasis added)

[6] It is not in dispute that the right to media freedom must be exercised responsibly with due regard to the rights of others and in accordance with the Code.This Tribunal has often emphasised, especially in matters pertaining to balance, that too rigorous an interpretation of the Code would chill broadcasters in their reporting on matters of public interest; and to chill amounts to censorship, which is anathema to a free and open democracy such as ours. Although stated within a different context (trade marks) it is, with respect, enlightening to quote what Sachs J states in the Laugh it Off Promotions7 judgment of the Constitutional Court:

“Yet when applied against non-competitor parody artists, the tarnishment theory of trademark dilution may in protecting the reputation of a mark's owner, effectively act as a defamation statute. As such it could serve as an over-deterrent. It could chill public discourse because trademark law could be used to encourage prospective speakers to engage in undue self-censorship to avoid the negative consequence of speaking - namely being involved in a ruinous lawsuit. The cost could be inordinately high for an individual faced with a lawsuit aimed at silencing a critic, not only in terms of general litigation expenses, but also through the disruption of families and emotional upheaval. Such protracted vexation can have the effect of discouraging even the hardiest of souls from exercising their free speech rights. As the US Court of Appeals for the First Circuit explained in LL G Bean, parodies serve an important public function which should not easily be suppressed:

5 [2003] QB 633 at para 4 6 2003/37. 7 Supra.

5 'The central role which trademarks occupy in public discourse (a role eagerly encouraged by trademark owners), makes them a natural target of parodists.

Trademark parodies, even when offensive, do convey a message. The message may be simply that business and product images need not always be taken too seriously; a trademark parody reminds us that we are free to laugh at images and associations linked with the mark. . . . Denying parodists the opportunity to poke fun at symbols and names which have become woven into the fabric of our daily life, would constitute a serious curtailment of a protected form of expression.” (footnotes omitted and emphasis added)

[7] Moreover, it is not only the right of the media that is implicated in these circumstances. The constitutional right of the public to receive information on matters of public interest is also triggered in these circumstances. As has recently been emphasised by the Constitutional Court in South African Broadcasting Corporation Ltd v National Directorate of Public Prosecutions at para [28]:

“A vibrant and independent media encourages citizens to be actively involved in public affairs …. Access to information and the facilitation of learning and understanding are essential for meaningful involvement of ordinary citizens in public life.”

Thus if the balance between freedom of expression and other rights is tilted too heavily in favour of the latter, it is not only the rights of broadcasters such as M- Net that are adversely affected; the public's right to receive information and ideas on matters of public interest will also be impacted upon.

It is against the above protection afforded by our Constitution and foreign judgments to freedom of expression and the media, that any alleged infringement of the Code must be assessed. I turn next to consider the insert and the complaints made by MXit.

[8] The insert concerned a number of issues: the increasing use of cell phones by minors; the technological developments that allows cell phone users to download software from the Internet that enables them to engage in on- "chats"; the dangers and risks for minors inherent in the technological developments in cellular phone and Internet technology; the use of cell phone technology by paedophiles; the use of cell phone technology to distribute sexually explicit images; the ability of minors to access pornography on their cell phones via adult

6 entertainment providers who advertise on television; the regulation by the Films and Publications Board of the distribution of pornography on cell phones.

[9] The subject matter of the insert therefore benefits from the protection afforded by the law to expression on matters of public interest. The Supreme Court of Appeal has held that the media's vital function is in making available "information and criticism about every aspect of public, political, social and economic activity"8 The subject matter of the insert was of clear public concern and comprised information and ideas that the viewing public had a right to receive. Reports and investigations concerning such material are given heightened protection under the Constitution. If this were not so, the media would be chilled from publishing matters of public interest to the detriment of society as a whole. 9 We have also taken into consideration that a viewer has but one opportunity to view a television broadcast insert, in contrast to reading a newspaper.10 We do not believe that the insert on MXit contained material that would be judged differently by a reasonable viewer if he or she were to look at it again. It was clear that the activities of MXit are conducted in a manner geared at protecting children and that it constantly cautions against irresponsible use.

Evaluation

[10] The unique position enjoyed by MXit in regard to the combination of cell phone and Internet technology in South Africa, particularly in order to facilitate on-line "chats", is a matter of public interest. MXit describes itself in the complaint as a provider of a "communication service that allows users to send and receive text

8National Media Ltd v Bogoshi (supra) at 1208. 9 Cf the Constitutional Court's discussion of the chilling effect on freedom of expression in the defamation context in Khumalo v Holomisa (supra) at para [49]. 10 Compare what Rumpff CJ says in Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A) at 408: “By die vraag of wat die aanhoorder van die nuusberigte sou kon gedink het, is die maatstaf die fiktiewe, normale, ewewigtige, regsinnige en redelike mens. So 'n persoon is vanselfsprekend nie hiperkrities of oorsensitief nie. Daar is egter 'n verskil tussen die leser van 'n geskrif en die aanhoorder van 'n berig oor die radio. By iets wat onseker skyn, kan 'n leser sy oog vir 'n tweede keer werp op wat hy gelees het of dink wat hy gelees het, maar by die aanhoor van 'n nuusberig kan hy nie die aankondiger vra om nog 'n keer die nuus te lees nie. Die gevolg is dat 'n eerste indruk ook vir baie die laaste indruk sal wees, hoewel die indruk later vir sommige op een of ander manier verander mag word…”

7 messages to and from cell phones and personal computers" ; MXit is the only South African cell phone service; MXit had approximately 855 000 users at the time of the Carte Blanche programme; according to comments of Herman Heunis, the current managing director of MXit, reported in the Cape Argus of 25 September 2006, as at that date MXit had 1.8 million registered users with "the numbers increasing by an average of 8 000 a day"; between 50 and 70 million text messages are sent on MXit per day; various articles concerning the activities of MXit have appeared in the print media (such as in the You and Huisgenoot magazines, the Sunday Independent, the Cape Argus, the Mercury, and on the Internet); leading commentators have discussed the activities of MXit (eg the psychologist Antoinette Basson of the Films and Publications Board, reported in the Sunday Independent of 3 September 2006, an Internet copy of which is enclosed); MXit continues to develop its technology to enhance the services that it provides; as at 25 September 2006, for instance, a new version of MXit's software became available that allows users to access their cell phone cameras and send a photograph to the person they are "chatting" to. Heunis expected more than 50 000 downloads of the new version of the software on the day of its launch.

[11] Given the constitutional imperatives involved in regard to reporting by the media on matters of public concern, I have no doubt that M-Net was entitled to cover the activities of MXit and that it should be given the appropriate level of “breathing space” in connection with the broadcast of the insert as a whole, and the role played by MXit in particular. Although it was argued by MXit that clause 34 of the Code, which deals with news, is applicable to the present insert, the operation of this clause is limited to “news” as traditionally conceived and perceived. In the e-TV/3 rd Degree case, the Tribunal held that the documentary Palestine is Still the Issue was not "news" for purposes of clause 34 of the Code. At para 3 the Tribunal stated:

'News' is of course a relative concept and 'news' would not necessarily always be the conventional news bulletins, which are customary in South Africa. However, we have no

8 doubt that the present program is not 'news'. News usually relates to the conveying of what has recently taken place. The programme under consideration deals with a very real current issue but puts forward a viewpoint rather than news in the conventional sense;

In N Dinur, D Mankowitz and EMET SA v M-Net,11 this Tribunal held that the documentary film Judgement Day concerning the Palestinian-Israeli conflict did not amount to news. The relevant portion of the judgment reads as follows:

Although commentary can at times be regarded as news, we do not agree that the present film falls in the category of news. It is true that it deals with events which have become part of the daily news, nationally and internationally, but the essence of news is lacking: 'news' is news because it reflects or attempts to reflect what has happened that day or recently and has, as one of its main characteristics, the quality of being 'new' and also being newsworthy;

[12] The complaint may only be judged in terms of clause 35 of the Code as quoted above. This Commission has often accentuated the necessity for broadcasters to adhere to the duty to inform correctly. Mis-information lies at the core of despotism, where the few brainwash the public into subservience. I need not go further than referring to Dr Goebbels within the Nazi Reich and, locally, for example, the alarming lack of information to the public at large about the 1976 youth uprising in Soweto and the death of Steve Biko within the apartheid regime. Commercial interests, such as that of the complainant in this matter, are, of course, also important. Several judgments of this Tribunal have dealt with the protection of such interests.12

[13] The specific complaints are (1) that the insert failed to mention that the experience of teenager Frances Olivier resulted from a violation of MXit's terms of use. Mr Milo, for Carte Blanche, argued that there are a number of responses to this allegation. First, that the broadcast made it plain to a reasonable viewer that Frances Olivier had not abided by MXit's terms of use. This appears from what Heunis says in the insert that "every time you enter a chat room, we say 'Please do

11 N Dinur, D Mankowitz & EMETSA vs M-Net, Case No: 2002/11. 12 Lindiwe N Sisulu vs M-Net, Case No: 23/Schneider Electric South Africa (Pty) Ltd and Schneider Electric SA vs M-Net, Case No: 26/2004; E Girolo vs SABC News, Case No: 12/2004 ; HG van der Linde vs M-Net, Case No: 36/2005

9 not reveal your personal information". This comment appears approximately 50 seconds after Olivier is quoted as saying that when her "friend" asked her "to go 'private', she sent him her cell phone number." Secondly, and in any event, the fact that Olivier had not complied with the terms of use set by MXit is not material to the thrust of the insert at that juncture, namely, the ease with which cell phone technology can be abused by those with malicious intentions; (2) that the insert failed to indicate that a number of other service providers can be abused by on-line predators. The unique and apparently dominant position of MXit in the South African market justified the focus on its infrastructural role in the insert. There was no obligation on Carte Blanche to mention that a host of other service providers offer services that can also be abused. The reasonable viewer is likely to know this. As stated by the Trib unal in M-Net/ Carte Blanche (Cottage Chaos)13:

“The fact of the matter is that the Complainant's bona fide expectations regarding the thrust, focus and presentation of the programme cannot supersede the Respondent's editorial prerogative.”

(3) The failure to indicate that MXit cannot be used to download pornography amounted to a misrepresentation of the facts and negligently associated MXit with pornography. The reasonable viewer would not, to my mind, have made the association contended for by MXit. That this is the correct test emerges from a number of judgments of the BCCSA. In de Vos v 702 Talk Radio,14 for instance, the BCCSA's Appeal Tribunal held that "it is highly unlikely that reasonable listeners will simply jump to new conclusions upon hearing one person's views". After the insert on MXit comes to an end, it is not mentioned again. The remainder of the insert focused on issues that the reasonable viewer will not associate MXit with. In any event, the insert made it plain that even if a "technology company" is vigilant, cell phone technology can still be used by sexual predators. Reasonable viewers are not likely to lay the blame for this abuse at the door of technology companies. (4) No attempts were made by M-Net to verify Olivier's allegations. There was no reason to doubt the accuracy of Olivier's experience. The most significant aspects of Olivier's

13 Winterbach vs M-Net, Case No: 2005/49 at para [17]. 14 P de Vos vs Talk Radio 702, Case No: 07/2006 at para [8].

10 experience were, in any event, verified by her mother, who says: "and the next thing the phone went, and she went … and she said, "It's this guy" … and she looked a bit nervous. And it was clearly a middle-aged man, clearly".

[13] Mr Milo, for M-Net, argued that it did not breach clause 35 of the Code in any respect. I agree: there is no material from which it may be inferred that the comment was not honestly made. Furthermore, the factual upon which the commentary was based was fairly referred to, as required by clause 35.2 of the Code. MXit does not complain of any inaccuracy in the insert concerning it; it chooses to criticise Carte Blanche for not including certain facts; these include a number of issues that have been dealt with above. In regard to the complaint that Carte Blanche failed to mention that MXit was not associated with various abuses of cell phone technology (including children sharing pictures of themselves, the 16-year old who was filmed having sex with two men, and the purchase of a pornographic clip), there was, to my mind, no obligation on Carte Blanche to make this point in circumstances where the reasonable viewer would not make the association contended for by MXit. The insert is clearly structured in a manner that separates MXit from the abuses referred to; in any event, the thrust of the insert makes it plain that MXit provides infrastructural services only and cannot be held responsible directly for all the consequences of cell phone abuse. There is no evidence that Carte Blanche's commentary was not based on true or identified facts. Similarly there is no reason to believe that its comments were not made in good faith. It did not impute in any manner that MXit was acting illegally or was an accomplice in the distribution of pornography or indecent materials. There is similarly no reason to disbelieve Heunis' explanation of MXit's terms of use and his reaction to the possible abuse of cell phone technology is included in the insert. The mere fact that abuses are also included in the insert in no manner implicates MXit.

11 [14] The BCCSA has often held that it will not lightly find a contravention of clause 35 of the Code. As the Tribunal remarked in D Grove v e-tv 15

Yet it has constantly been our approach to clause 35 (clause 3 in the previous Code) that only in cases where it is absolutely clear that there was unfair comment on a matter of public importance would we find against a broadcaster under this clause. Balance and fairness are difficult aims to meet, and so, in order not to stifle freedom of expression, in cases where doubt exists we would rather come to the finding that a programme has not contravened this clause of the code, than stifle debate and free speech, even though such speech may not be wholly sensitive or balanced.

[15] MXit finally argued that Carte Blanche should, as required by clause 36 of the Code, have presented "opposing points of view, for example, those of satisfied MXit users and/or their parents." I am satisfied that by having included the comments of a representative of MXit, clause 36 was complied with. There is no duty on a broadcaster to add favourable comments when it has already complied with the basic tenets of the Code. In any event Heunis' views, as the official representative of MXit, were broadcast; he was afforded the opportunity to explain how popular MXit is with the public; to comment on the request by Frances' "friend" that she "go public"; to describe the terms of use of MXit where users log in for the first time, and also each time they enter a chat room; and to explain that there are a number of players who are involved in deciding how abuses of the technology might be curbed, such as "the individual, … the parent, … the technology company."

In the result we could find no contravention of the Broadcasting Code.

JCW VAN ROOYEN SC 18 December 2006 CHAIRPERSON

Commissioner Lötter and ad hoc Commissioner Mokoena-Msiza concurred in the judgment of the Chairperson.

15 D Grové vs e-tv, Case No: 2004/29 at para [14].

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