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Case Number: 70 /2005 Date of Hearing

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Case Number: 70 /2005 Date of Hearing CASE NUMBER: 70 /2005 DATE OF HEARING: 07 NOVEMBER 2005 C FERREIRA 1ST COMPLAINANT C BYSSHE 2ND COMPLAINANT V LOPEZ 3rd COMPLAINANT vs 5FM 1ST RESPONDENT JACARANDA FM 2nd RESPONDENT TRIBUNAL: Prof Kobus van Rooyen SC (Chairperson) Mr Ratha Mokgoatlheng Ms Lauren Gower Mr Robin Sewlal Dr Linda Venter 5FM - Complainants: Ms Ferreira and Ms Bysshe accompanied by Mr Ryan Hogarth. JACARANDA 94.2 FM – Complainant did not attend For the SABC: Mr Fakir Hassen, Manager Broadcast and Compliance, Policy and Regulatory Affairs of the SABC accompanied by Mr Nick Grubb, Programme Manager, 5fm For Jacaranda FM: Mr Peter Grealy of Webber Wentzel Bowens ________________________________________________________________________ Religion- Scientology – silent birth joked with – involvement of famous actors making the references less invasive. Ferreira and Bysshe vs 5fm and V Lopez vs Jacaranda 94.2 FM, Case No: 70/2005 ________________________________________________________________________ 2 SUMMARY The Registrar received complaints from adherents of the Scientology faith that broadcasts on Jacaranda FM and SABC’s 5fm offended them. The comments by presenters of programmes, in both instances made reference to Tom Cruise and Katie Holmes’ plan to have a “silent birth” in accordance with their faith, Scientology. Since the complaints deal with the same subject, I will deal with both matters in one judgment. The Tribunal held that in the particular programmes which have been complained about, it did not believe that the Scientology belief in still birth would have been criticized, had it not been for the world famous actors involved. Of course, the references go further than mere criticism but amount to joking with what Scientology believers regard as part of their faith and the practices and respect for Ron Hubbard that go with it. The Tribunal accepts that the references were offensive to the religious beliefs of Scientologists. However, the Constitutional Court has held that offense as such is not sufficient to trump the right to freedom of speech. The invasion of the fundamental right to freedom of religion must have been unreasonable in the circumstances. The Tribunal has concluded that the invasion amounted to particularly questionable expression but that given the inclusion of the famous personalities, the joking was not directed at Scientology directly but rather at their involvement in silent birth. Of course, this does not mean that the religious practice of silent birth is not also drawn in and that the actors are not also entitled to protection, but it tends to soften what would otherwise be regarded as a contravention of the Code. I might add that the reference to Ron Hubbard’s having fathered the baby is regarded as questionable speech in the extreme and on the verge of mockery. Once again, however, the involvement of the famous actors provided the opportunity for jokes – jokes that were in particularly questionable taste and deserve internal discussion at the two broadcasters involved. The complaints were not upheld. ________________________________________________________________________ JUDGMENT JCW VAN ROOYEN SC (CHAIRPERSON) [1] The Registrar received complaints from adherents of the Scientology faith that broadcasts on Jacaranda FM and SABC’s 5fm offended them. The comments by presenters of programmes, in both instances made reference to Tom Cruise and Katie Holmes’ plan to have a “silent birth” in accordance with their faith, Scientology. Since the complaints deal with the same subject, I will deal with both matters in one judgment. 3 [2] The complaints read as follows: C Ferreira: “That same afternoon I then listened to Radio 5, to escape any other unpleasant broadcasts from Jacaranda and here I heard the exact same disparagement of Mr Cruise and his religion. I was now horrified. Gareth Cliff was truly offensive when he said that Tom Cruise cannot be the father of Katie Holmes' baby, but maybe the father is L.Ron Hubbard. Mr. Hubbard is the founder of the Scientology religion and passed away in 1986. He then also said disparaging things about Mr. Cruise personally and of his religion, all in the same vein as Kieno. It was as if both of them had been given the same script and lines to give out. I changed the station as I was offended by this kind of talk.” C Bysshe: “I would like to register a complaint against the presenter/DJ who was on air on 5FM at around 6.15 -6.30pm on Thursday, 6th October. His mockery of my religion (Scientology) and the founder, Mr L Ron Hubbard, is in violation of our Constitution. Initially he was inviting people to phone in with their "conspiracy theories" about Tom Cruise, about whom he was extremely critical. This then led to him mocking the Church of Scientology and its founder. I am extremely offended by this behaviour. He said, amongst other things, in a mocking voice "I am L Ron Hubbard and I am going to help you "self actualise" by ascending through the levels of Scientology". To begin with, the term "self actualise" : I believe it originates from Maslow's "Hierarchy of Needs". It has absolutely nothing to do with the subject of Scientology. If he had publicly and mockingly declared himself to be Allah, and then quoted a principle of Islam which originated from Jesus in the Bible of Christianity, or perhaps declared himself to be Jesus and then mockingly quoted a Jewish Orthodox principle, I have absolutely no doubt that some outrageous protest or possibly even legal action would follow. This is highly offensive and totally unacceptable. In my opinion he should have to make good with a public apology and then go and look for another profession. I would be grateful if this matter could be investigated and if I could be given feedback on the outcome. The Church of Scientology presently enjoys the highest respect all around the world and the founder, Mr L Ron Hubbard is a renowned humanitarian who has been awarded the highest accolades for his contributions to mankind in dozens of fields of endeavour, by governments and social orders across the globe. How dare this arrogant man tear him apart on air?!” The next complainant against Jacaranda, V Lopez, referred to the same aspects but added the following: “It started as Kieno saying something about Katie Holms being pregnant and that John Travolta had advised her to have a silent Birth of her child. He went on to day that John Travolta is a member of the Church of Scientology and that Scientology is for rich people with nothing better to do. I am a Scientologist and Scientology is my religion of choice, I am not a rich person and I take off all religion. I am tolerant of all religions and I do not make it a practice to make religious intolerant statements about other religions. These thoughtless uninformed comments that Keeno made, makes religion seem like a joke and I will not tolerate it.” [3] The SABC’s Mr. Hassen responded as follows: “The mentions came by way of the presenter discussing how actor Tom Cruise’s partner could be pregnant when it was widely reported that he was unable to father children. He said this was “weird” and asked if it could be some sort of strange conspiracy going on in Hollywood. This is obviously not a conversation to be taken seriously. He asked listeners to call in with their wildest conspiracy theories on what could have transpired. After the break the presenter took calls from listeners who gave their “wild” theories. During the third caller’s conversation, the cell reception broke up, and Gareth and Leigh-Ann joked that the call had probably been intercepted, and the conspiracy theories were true! All this occurred to the tune of “spooky” music in the background, to lend to the air of parody. 4 The presenter then went on to make the statement in the complaint about “This is L Ro n Hubbard… etc”. Given the context, all he was doing was joking that perhaps the interception was orchestrated by someone powerful. We do not believe this would have been offensive had any other religious icon replaced Hubbard in this link. It is simply too farcical. We do not consider the segment in question to be in contravention of the Code, as we believe the listener was not aware of the context of the discussion, and has therefore afforded the references to Scientology and L Ron Hubbard more gravity than is merited.” [4] The legal representative of Jacaranda FM, Mr Grealy, argued that freedom of speech is an important Constitutional value and that judgments of the Constitutional Court, the Human Rights Commission and the BCCSA all accepted that even if material is offensive to listeners or a section of the listeners, it would not necessarily amount to hate speech. It was also argued that the references were not unfair in terms of clause 35 of the Broadcasting Code. [5] Clause 16(3)(c) of the Broadcasting Code provides as follows: “Licensees shall not broadcast material which, judged within context, amounts to (a) propaganda for war; (b) incitement of imminent violence; or (c) the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.” Clause 16(3)(c) is identical to Section 16(2) of the Constitution, which is directed at what is commonly referred to as hate speech. The right to freedom of expression is essential to an open and democratic society based on freedom and equality. This principle has been recognized by the Constitutional Court, the South Africa Human Rights Commission and the BCCSA. The Constitutional Court has commented as follows on this right: In the context of this country’s history relating to the suppression of this right, this right must be “zealously guarded”.
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