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 ______

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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”. (Philips and another v the Director of Public 5

Prosecutions and Others 2003 (4) BCLR 357 CC); “A society which truly respects freedom of expression must, of necessity, afford protection to the views which may be regarded as “unpopular” and “controversial”. (South African

National Defence Union v Minister of Defence and Another 1999 (6) BCLR 615

CC);“…freedom to speak one’s mind is now an inherent quality of the type of society contemplated by the Constitution as a whole…” (S v Mamabolo 2001 (5)

BCLR 449 CC); and in Islamic Unity Convention v Independent Broadcasting

Authority and Others 2002 (5) BCLR 433(CC), the Court held that the previous

Code of Conduc t applied by the BMCC and the BCCSA (which provided that it was a contravention to broadcast material which was offensive to the religious convictions or feelings of a section of the population) would seem to be too wide in its limitation of freedom of speech in its clause 7, where matters concerning indecency and offense to religion were dealt with. For that case, the clause which prohibited material which was likely to harm relations between sections of the community, was held to be too wide and substituted by a clause which was in accordance with section 16(2) of the Constitution of the Republic.

The South African Human Rights Commission has commented as follows on this right:

“In the light of the fact that once an expression is deemed to be hate speech it would not enjoy the protection of a constitutional right. “Any test used to assess whether expression amounts to hate speech must acknowledge the seriousness of such a classification”. (Freedom Front complaint re: Kill the Farmer kill the Boer)

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“It is important to recognize that hate speech prohibits the advocacy of hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm. Expression that simply offends segments of the community does not amount to hate speech as defined in section 16(2)(c). A distinction must be drawn between expression that offends and expression that harms or is likely to harm in the manner described above.” (Freedom Front complaint re: Kill the Farmer kill the Boer).

The BCCSA has in many instances considered whether an expression constituted hate speech and constituted incitement to cause harm. In Katz vs 94.7 Highveld

Stereo (Case No: 2003/27) the BCCSA had to consider whether the words “that f-cking Jew” used in the context of a joke constituted hate speech. The BCCSA stated the “legal test is whether the joke amounted to advocacy of hatred that is based on religion and whether the words constituted incitement to cause harm.”

The BCCSA found that the words did not, within the context, constitute hate speech.

In Van Loggerenberg vs 94.7 Highveld Stereo (Case No: 2003/26) the BCCSA, by way of a majority judgment, held that the “sexual innuendo which also refers to God interfacing carnally with the Virgin Mary, the Mother of Jesus Christ, may be said to be irreverent and profane but in the light of modern attitudes with regards to religion and religious matters and beliefs it is the majority’s view that 7

such joke does not amount to the advocacy of hatred based on religion that

constitutes incitement to cause harm.”

It has, however, also been held in two Highveld Stereo matters that the mocking

of the Jewish Yom Kippur fasting and the mocking of the Christian and Jewish

belief that the Name of God must not be taken in vain, amounted to hate speech in

the circumstances. The mocking of the name of the Prophet Mohammed has also

been held to amount to hate speech.1

[6] Scientology is a religion with worldwide adherents. Its leader, Ron Hubbard, who

passed away in 1986, has been heralded for his work and leadership. I was informed

that he is neither regarded as a prophet or as a god but as a leading force amongst

the adherents. His numerous published works are also a constant guide.

[7] Two aspects should be added to the thinking expressed in regard to hate speech:

firstly that freedom of conscience, religion, thought, belief and opinion is

guaranteed as a fundamental right in section 15 of the Constitution of the Republic;

secondly, that the Constitutional Court has accentuated the rights of minority groups

in our society. In the Islamic judgment (supra) the Constitutional Court emphasises

that expression should not be allowed to impair the exercise and enjoyment of other

important rights, such as the right to dignity, other state interests and the pursuit of

national unity and reconciliation – see paragraph [30] of the judgment. Furthermore, 8

on other occasions, it has been emphasised by the Constitutional Court that the

protection of the rights of minorities is an integral part of our new democracy. The

fact that such a minority is constituted by a small group is irrelevant. It is entitled to

equal protection in terms of the Constitution. Compare Christian Education South

Africa v Minister of Education 2000 (4) SA 757 (CC); Prince v President Cape Law

Society, and Others 2002 (2) SA 794 (CC) at par 112 where the majority states:

“The fact that they are a very small group within the larger South African community [the Court was referring to members of the Rastafarian religion] is no reason to deprive them of the protection to which they are entitled under the Bill of Rights. On the contrary their vulnerability as a small and marginalised group means that the Bill of Rights has particular significance for them. The interest protected [in that case by s 15(1) and s 31 of the Constitution] is ‘not a statistical one dependent on a counter-balancing of numbers, but a qualitative one based on respect for diversity’.”

[8] I have referred to these judgments, not to equate the adherents of Scientology with

any marginalised group, which it is not, but to accentuate the importance of the

recognition of diversity and the protection of a minority in the pursuit of national

unity and reconciliation. The dignity and vulnerability of members of any minority

must be protected against abuse.

[9] In the particular programmes which have been complained about, the Tribunal

does not believe that the Scientology belief in silent birth would have been

criticised, had it not been for the world famous actors involved. Of course, the

references go further than mere criticism but amount to poking fun at what

Scientology believers regard as part of their faith and its practices. Their respect for

Ron Hubbard is also relevant. The Tribunal accepts that the refe rences were

1 Du Plessis, Venter & Others vs 94.7 Highveld Stereo “Yom Kippur” Case No 2004/04 ; L Harris, Alexander & Others vs SABC (5FM) “Interview with Jesus” Case No 2004/11 ; Lakhi & Others vs 94.7 Highveld Stereo “Hammed” Case No 2004/4.1 9

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 poking of fun was not directed at

Scientology directly but rather at the famous personalities’ 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 of the religion

itself. Once again, however, the involvement of the famous actors provided the

opportunity for jokes – jokes that were in particularly questionable taste and

deserve internal managerial discussion at the two broadcasters involved. I might

add that the dignity of deceased persons is not protected in our law. See in this

regard Herstigte Nasionale Party v SABC 3, Case 42 of 2004.

The complaints are not upheld.

JCW VAN ROOYEN SC 14 January 2006 CHAIRPERSON Commissioners Mokgoatlheng, Gower, Sewlal and Venter concurre d in the judgment of the Chairperson.

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