42 Freedom of Expression Dario Milo, Glenn Penfold & Anthony Stein 42.1 Introduction . 42–1 42.2 The Drafting History of FC s 16 . 42–2 42.3 The Structure of Free Speech Analysis: FC s 16(1) and FC s 16(2) . 42–6 42.4 The General Approach of our Courts to the Constitutional Right to Freedom of Expression . 42–8 42.5 The Rationales For Freedom Of Expression . 42–14 (a) The search for truth . 42–16 (b) The proper functioning of democracy . 42–21 (c) Self-fulfilment and audience autonomy . 42–25 (d) Some other rationales for freedom of expression . 42–28 42.6 The Application of FC s 16(1). 42–30 (a) ’Everyone’ has the right to freedom of expression . 42–30 (b) Direct horizontality of FC s 16(1): Khumalo v Holomisa 42–30 42.7 Protected Expression: Analysis of FC s 16(1) . 42–31 (a) Freedom of speech and expression . 42–31 (b) Freedom to receive or impart . 42–32 (c) Information or ideas . 42–33 (d) Freedom of the press and other media . 42–34 (i) Press exceptionalism . 42–34 (ii) Protection of sources of information . 42–36 (aa) Comparative jurisprudence . 42–40 (bb) The preferred approach to the privilege under the Final Constitution . 42–49 (e) Freedom of artistic creativity . 42–52 (i) The centrality of context. 42–54 (ii) What is art?. 42–57 [2nd Edition, Original Service: 06–08] 42–i CONSTITUTIONAL LAW OF SOUTH AFRICA (f) Academic freedom and freedom of scientific research. 42–60 (g) Protecting the means of expression . 42–62 (i) Monopolies . 42–62 (ii) Testing the means of expression: the availability of alternative means . 42–63 (iii) State support for the means of expression and state broadcasters . 42–65 (iv) The Internet . 42–67 42.8. Excluded Expression: Analysis of FC s 16 (2) . 42–69 (a) FC s 16(2)(a): Propaganda for war . 42–69 (b) FC s 16(2)(b): Incitement of imminent violence . 42–71 (c) FC s 16(2)(c): Hate speech . 42–73 (i) The arguments for and against hate speech prohibitions. 42–73 (ii) The constitutional treatment of hate speech . 42–79 (aa) The express exclusion in FC s 16(2)(c) . 42–79 (bb) ‘Advocacy of hatred based on race, ethnicity, gender or religion’ . 42–80 (cc) ‘Incitement to cause harm’ . 42–81 (iv) Legislative prohibitions on hate speech. 42–84 (aa) The general approach to assessing the constitutionality of hate speech legislation . 42–84 (bb) Section 29 of the Films and Publications Act . 42–85 (cc) Section 10 of the Equality Act . 42–86 42.9 Major Restrictions on Freedom of Expression. 42–88 (a) The law of defamation . 42–88 (i) Standing to sue for defamation . 42–90 (ii) Defamatory statements. 42–91 (iii) The challenges to the onus rule and the strict liability rule . 42–93 (iv) The defence of reasonable publication . 42–95 (v) Falsity as an ingredient of the plaintiff’s cause of action . 42–99 (vi) Truth for the public benefit . 42–101 (vii) Remedies: Interdicts, damages and the amende honorable . 42–104 (b) The law of privacy . 42–107 (i) Lack of negligence in media privacy cases . 42–108 (ii) The public interest defence . 42–111 42–ii [2nd Edition, Original Service: 06–08] FREEDOM OF EXPRESSION (c) Restrictions designed to serve the administration of justice . 42–115 (i) The principle of open justice. 42–115 (ii) Restrictions on the open justice principle . 42–121 (iii) Broadcasting of enquiries and judicial proceedings. 42–123 (iv) Balancing freedom of speech against the administration of justice . 42–128 (aa) Scandalising the court . 42–128 (bb) The sub judice rule. 42–134 (d) Intellectual property restrictions . 42–140 (i) Parodying famous trademarks . 42–140 (ii) Copyright: Defences to infringement . 42–145 (e) Sexually explicit expression . 42–149 (i) The statutory framework . 42–149 (ii) Pornographic films and publications as protected expression. 42–150 (iii) Assessing limitations on sexually explicit material: pornography as low-value speech . 42–154 (iv) Assessing limitations on pornography: harms sought to be avoided through criminalizing pornography . 42–156 (v) Nude dancing as protected expression . 42–159 (f) Commercial expression . 42–161 (i) Commercial speech as protected expression . 42–162 (ii) Assessing limitations on commercial expression . 42–164 (g) Restrictions in the interest of national security, defence and intelligence . 42–170 (i) General national security restrictions . 42–170 (aa) the Constitution . 42–170 (bb) Minimum Information Security Standards . 42–171 (cc) Protection of Information Act . 42–173 (ii) Other legislative entrenchment of national security restrictions . 42–174 (aa) The Defence Act . 42–174 (bb) The National Key Points Act . 42–175 (cc) The Intelligence Services Act . 42–176 (dd) Other legislation. 42–176 (iii) Case law . 42–177 (h) Prior restraints on publication . 42–183 [2nd Edition, Original Service: 06–08] 42–iii CONSTITUTIONAL LAW OF SOUTH AFRICA (i) The presumption against prior restraints. 42–183 (ii) Legislative prior restraint . 42–184 (iii) Judicial prior restraints . 42–185 42.10 Special Protection of Speech in the Legislature. 42–189 42–iv [2nd Edition, Original Service: 06–08] FREEDOM OF EXPRESSION 16. Freedom of Expression (1) Everyone has the right to freedom of expression, which includes — (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; (d) academic freedom and freedom of scientific research. (2) The right in subsection (1) does not extend to — (a) propaganda for war; (b) incitement of imminent violence; (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that con- stitutes incitement to cause harm.1 42.1 INTRODUCTION This chapter deals with the fundamental right to freedom of expression. This is a right that has attracted a great deal of judicial attention since its entrenchment in FC s 16 and its predecessor, IC s 15. We start with a discussion of the drafting history of FC s 16 and the major issues that arose during the drafting process. This is followed by an introduction to the structure of analysis under FC s 16’s two parts: the protection in FC s 16(1) and the exclusions in FC s 16(2). We then consider the general approach of our courts to the FC s 16 right, including the dominant approach of balancing the right against countervailing considerations, and the rationales for protecting free speech (including the traditional justifications of the pursuit of truth, the functioning of democracy and self-fulfilment). Next, we focus on the application of FC s 16(1) in more detail; we consider, amongst others, the meaning and import of the express inclusion of freedom of the media, freedom to receive or impart information and ideas, freedom of artistic creativity and academic and scientific freedom in FC s 16(1). Some of the issues canvassed in this context are the meaning of ‘expression’, the notion of ‘press exceptionalism’, the protec- tion of journalists’ sources, the concept of artistic expression and the protection of the means of expression. Having largely focussed on the protection of freedom of expression up to then, we move to restrictions on freedom of expression that shed light on the nature of the protection given to freedom of expression. First, we look at the categories of expression excluded from constitutional protection in FC s 16(2): propaganda for war, incitement of imminent violence and, most significantly, hate speech (which, in the constitutional context, consists of ‘advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm’). In this section we also consider legislative restrictions on hate speech. Second, we examine, at some length, various common law and statutory restrictions on free- dom of speech, which each raise fundamental issues as to the proper balance between freedom of expression and countervailing rights and values. In this * The authors would like to thank Michael Bishop and Stu Woolman for their editorial assistance. 1 Constitution of the Republic of South Africa, 1996 (‘Final Constitution’ or ‘FC’). [2nd Edition, Original Service: 06–08] 42–1 CONSTITUTIONAL LAW OF SOUTH AFRICA section, we first consider defamation, an area in which free speech clashes with the right to reputation and in which the law has developed dramatically since the advent of constitutional democracy. This is followed by a discussion of privacy, restrictions in the name of protecting the administration of justice (that is, the open justice principle and its implications as well as the criminal offences of scandalising the court and the so-called sub judice rule), intellectual property restric- tions, sexually explicit expression (including pornography, child pornography and nude dancing), restrictions on commercial expression (notably, advertising restric- tions), restrictions in the interests of national security, defence and intelligence, and prior restraints on publication. Our main focus in the discussion of these restrictions is assessing the proper constitutional approach that ought to be taken to these restrictions or, put differently, where the balance should be struck in these areas of expression. Finally, we consider the special protection of speech in the legislature, including the rule that members of the legislature are not liable for what they say in these institutions that are so central to our democracy. 42.2 THE DRAFTING HISTORY OF FC S 16 In addition to their historical interest, travaux pre´paratoires may under certain cir- cumstances play a role in the interpretation of a fundamental right.1 The text of the right to freedom of expression under the Final Constitution differs in notable respects from that of the Interim Constitution.2 Moreover, the clause went 1 See S v Makwanyane & Another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at paras 16-19 (‘In countries in which the constitution is similarly the supreme law, it is not unusual for the courts to have regard to the circumstances existing at the time the constitution was adopted, including the debates and writings which formed part of the process.