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JOINT COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
23 November 1999
Documents handed out:
List of submissions
Submissions Promotion of Equality
The view of the Print Media Association is that freedom of expression is inextricably linked with the existence of a true democracy. They stated that the public has a right to hear all points of view and that the government should trust the ability of the public to make their own decisions as to what is considered offensive material and what is not. They criticised specific provisions of the Bill as being unconstitutional in that it reduced the amount of freedom of expression allowed in the Constitution.
National Newspapers indicated that they agreed Print Media Association. They suggested that the task of censorship remain with industry-based controls. Boards, such as the Advertising Standards Authority, were more than capable of dealing with abuses of freedom of expression. He added that such industry-based control was a more user-friendly mechanism to deal with complaints than having to resort to the courts on the basis of the contravention of specific legislation.
The Freedom of Commercial Speech Trust broadly supported the principles in the Bill, but felt that section 6(2) had no place in it. It strongly supported the self regulation of commercial communication by the Advertising Standards Authority.
The Freedom of Expression Institute supports the broad principles of the Bill but felt that the promotion of equality could not be done at the expense of freedom of expression. FXI argued that section 6 and section 8 (a) be removed because of the threat to freedom of expression. FXI expressed a concern that section 47 introduced the controversial sections 188, 189 and 205 of the Criminal Procedure Act. For decades, the media have had an on-going battle regarding the thorny issue of protection of sources. To introduce these controversial sections in this Act would be inappropriate. They contend that the rules of discovery are sufficient to ensure that evidence is produced where relevant.
The Chairperson noted that all the submissions dealing with the media overlapped to a great extent. In the light of this, discussion ensued only at the end of all the submissions.
Print Media Association
Various members of the Print Media Association were present. Included amongst these were Mr M Williams, the editor of the Argus, and Ms E Du Toit, who commenced the presentation by indicating that their association represents a total number of 660 members. They indicated that Section 16 of the Constitution (the freedom of expression clause) lay at the heart of any democracy and the two concepts were inextricably linked.
Their rationale was that the people have trusted the government by putting them into power, now government must do the public a similar courtesy by trusting the public to decide for themselves what they regard as offensive material. When government fails to do this they succeed in insulting the public. They continued with an enunciation of those provisions in the Bill which they found to be constitutionally objectionable.
Mr Van Rooyen indicated at the start that he supported the underlying principles which were enunciated by the Print Media Association. With regard to the issue of limiting the rights of the media he indicated that he had great confidence in what he referred to as 'industry-based control'. Thus, he felt that Boards which are already in existence and have been created to exercise control over media (for example, the Advertising Standards Authority) would exercise sufficient control over media organisations to ensure that no lines were crossed to the extent of offending the 'fair-minded' public. He intimated that industry-based control was an appropriate mechanism to deal with abuses of freedom of expression as it was speedy, open, and informal. He added that, because of these advantages, this was a far better mechanism to deal with complaints than having to resort to the courts on the basis that specific legislation had been contravened. An exposition of the specific provisions of the Bill with which his organisation was dissatisfied with was given
Freedom of Commercial Speech Trust
Mr Piet Delport said that his organisation is a voluntary body formed to protect and watch over freedom of commercial speech as enshrined in the Constitution. They support the principle that the consumer should get more rather than less information. With regard to commercial communication, they supported self-regulation. Contrary to what people generally believed, self regulation did work. It regulates things as dynamic and diverse as the economy of South Africa as the Johannesburg Stock Exchange is regulated through self-regulation.
The Trust fully supported the principles of the Bill. The injustices of the past had to be rectified. However Clause 6.2 of the Bill, especially the part dealing with commercial communication: " No person should publish or display any advertisement or noticeâ€¦" , was too consequential to be part of the Bill. The Bill had bigger aims in mind and as such Clause 6.2 should not be part of the Bill. If this clause remained, then adverts that were, on face value only, discriminatory (such as the series of Castrol and Nando adverts) would be banned. These were harmless parodies designed to entertain. The intention of a such a communication was also important to bear in mind since clearly the intention of these advertisements was not to discriminate.
Besides consumers there were also commercial competitors who would use clause 6.2 as an opportunity to lodge complaints against such adverts on the basis that they were discriminatory but there would be a hidden agenda to disrupt a competitor's commercial campaign.
He suggested that the alternatives would be to keep the self regulatory situation as it is. Thus the ASA should be kept. Many people had different views as to whether the ASA worked or not. The mere fact that there was this hype and uproar around this question showed that it did work. The ASA had an efficient way of dealing with complaints and should not be interfered with. Alternatively clauses 6(2) should be taken out of the Bill and put in a separate act, which could run parallel to a certain extent with the ASA and the functions of the ASA.
Freedom of Expression Institute
Mr Mandla Seleoane began the Freedom of Expression Institute presentation. The broad principles enshrined in the Bill were supported since it appreciated the importance of promoting equality in South Africa given its past. Nevertheless the promotion of equality could not be done at the expense of freedom of expression. There was no hierarchy in respect of the rights in the Constitution since the courts have said that they have an equal status. Thus one should not compromise freedom of expression in the pursuit of equality - not that the right to equality was not important. Prejudice could only be fought effectively in a society where there was open and free discussion. The suppression of compromise freedom of expression would result in the creation of an atmosphere where prejudice would thrive.
The proposals were that sections 6(2);8(e) and 48 should either be eliminated or amended to conform to the Constitution. The problem with 6(2) was that it short circuits the constitutional provision in section 16(2) to the extent that, in terms of 16(2) of the Constitution, one would expect that advocacy of hatred based on race, gender and so would be prohibited. One would expect that what would be prohibited would be statements, the effect of which is incitement to cause harm etc. With section 6(2) the threshold is much lower than what the Constitution says. Thus it should either be removed or it should be made sure that it was in line with the Constitution so that it did not end up reducing the constitutional right to freedom of expression.
The other problem with 6(2) of the Bill was that intention was not required in terms of the effects that were contemplated. All that was needed was the indication that there was the intention but actual intention was not required. Thus the effect was that the test which was normally applicable in these situations was lowered and there was thus a need to revisit this section if it was going to be included at all.
Freedom of expression embodied in 16(2) came already limited in the language of the very section that guarantees us our freedom of expression. Thus limitations stipulated in Section 16 of the Constitution should be seen as exhaustive and no other limitations should be included in new legislation as in section 6(2) of the Bill.
Ms Laura Pollecutt continued the submission by saying that the definitions were altogether too complicated. They were adamant that if the Act is to be of use to the most disadvantaged in society, they should aim to make it as simple and accessible as possible.
Section 3 seems unnecessary in that it repeats what is in the Constitution. Because of the supremacy of the Constitution it also seems unnecessary to prescribe the contextual and purposive approach to interpretation. This should just be a matter of course regardless of the legislation.
Section 6 and section 8 (a) should be removed because of the threat to freedom of expression. Chapter 5 should be the way of resolving problems of the discrimination these sections sought to curb. This is because it is their belief that it is only "awareness and the promotion of a climate of understanding, mutual respect and substantial equality", which will effect behavioural changes necessary to eliminate discrimination. It would be inappropriate to drive it underground.
FXI expressed a concern that although the bill has the make-up of a piece of civil legislation, section 47 introduced the Criminal Procedure Act. This is problematic for several reasons including the fact that it could see the Act falling between two stools so to speak.. But their major concern with this section is that it introduces the controversial sections 188, 189 and 205 of the Criminal Procedure Act. For decades, the media have had an on-going battle regarding the thorny issue of protection of sources. Currently the South African National Editors Forum and the Departments of Justice and Safety and Security are attempting to resolve this matter to the satisfaction of all parties. To introduce these controversial sections in this Act would be inappropriate. FXI contends that the rules of discovery are sufficient to ensure that evidence is produced where relevant.
Finally FXI argued fairly strongly that to ban hate speech would not result in less racism and pointed to Germany where Nazi regalia and mementos are banned, yet there has been a rise in neo-Nazism.
The Chairperson commenced this portion of the meeting with a brief introduction. He noted that with the advent of democracy began the elimination of discrimination. What this Bill envisaged to do was to balance the right to equality with freedom of expression. The essence of the current debate may be summed up in one question: to what extent must the legislature give freedom of expression the unfettered right to continue?
Dr Davies (ANC) noted that, from the submissions, he had detected a variety of opinions. He asked for clarity as to whether what was being requested by the various media organisations was no limitation whatsoever or some kind of limitation.
Print Media stated that most people are fair-minded, and, as such, people had a right to make their own decisions as to what they wanted to read or not. This was not a task for the authorities. They added that the government of a democracy should behave like democrats and that they should realise that people will not simply accept everything that they hear - if it is absurd,then people will realise that it is absurd.
The Chairperson interjected to ask what would happen if there was a group in society that was continually insulting others (for example, on religious grounds). In this case, should there still be no intervention by government legislation?
The reply to this was that the argument was noted and that such a situation was reprehensible. However the underlying point remains: one must rely on the pillars of democracy - people have a right to express themselves and others have a right to hear these expressions and decide for themselves whether they choose to be offended or not.
Mr Moegsien Williams added that one of the aspects of democracy was that you must allow people to say what they think even when you disagree with them. This he described as 'the uncomfortable part of democracy'. He added however, that he did not believe in unfettered discretion or absolute freedom of the press. The guiding line, according to him, would be the conventions and the morals of society.
Mr Z Langa (ANC) felt that some of the presenters were saying that racists should be allowed to say whatever they wanted. He said that, whilst in section 16 of the Constitution there was a commitment to freedom of expression, it was limited. He wanted to know whether those people who were calling for no limitation to freedom of expression, were aware that they were accountable to the Constitution.
Various members of the panel said that they were not arguing for an unfettered freedom of expression. They pointed out that in section 16, freedom of expression was already limited.
National Newspapers stated that they were not calling for unfettered discretion of the press. Section 16(2) of the Constitution which deals with restrictions on the advocacy of hatred on certain specified grounds and the incitement to do harm is a section that the press would certainly support. They noted however, that S56(1) of the IBA Act provides for a code and S56(2) has been the subject of a proposed change to take place in next year. The result of this change will be that the Code will be more constitutional. The Broadcasting Code provides clearly that, on matters of public interest, if there has been a criticism, the Broadcasting Authority must be approached. This type of censorship was considered by the National Newspapers to be both appropriate and sufficient.
Adv Madasa (ACDP) said that he had recorded two principles, which had been spelt out by the media in respect of what its functions were. Firstly it had been stated that it was an instrument of the free flow of ideas. Secondly it enhanced morality in society among other things. He said that in reality, when the media reported, it used different criteria. When reporting, the profit motive appeared to be one of the main considerations taken into account. In terms of the free flow of ideas, it was the reality with regard to minority parties in government that they are never or very seldom reported on. There was thus clear inequality with regard to reporting. He felt that whilst he did not want the regulation of the media, he felt that he had to support it so that minority parties like his own could be reported on. The difficulty he thus had with the media was that they did not practice their professed ideals.
It was pointed out by a member of the panel that any political party could approach the Broadcasting Complaints Commission with such complaints and the party would get reasonable opportunity to air its views.
Professor Turok (ANC) remarked that Parliament was driven by a need to counter inequality and discrimination. This is the same principle which prompted the drafting of the Bill in question. He questioned how Parliament would be able to work toward this goal if they did not legislate clauses such as the ones in question.
The panel responded that their primary concern was that the legislation would prevent the press from reporting on incidents of racism.
The Chairperson, Mr Moosa (ANC), noted that S8(e) of the Bill in question has a clear intention. It does not 'catch' the journalist reporting as the intent in this case is to disseminate news. If, however, a racist editorial was printed, then this would fall within the ambit of the section. In other words in terms of clause 8(e) dealing with the prohibition of the words like "kaffir, "coolie" etc, he understood it to mean that the journalist who disseminates reports of such hate speech would not be in trouble for doing so. On the contrary, the person making the statement would be guilty of unfair discrimination. He wanted to know if this was understood in the same way by the panel.
A member of the panel said that this was the crux of the problem since journalists often sat with the dilemma of not knowing whether to publish something or not and Section 8(e) would add to this problem, opening the gates to frivolous litigation in equality courts. He said that there were many sensitive readers who did not have a very good perception of what was happening and what the function of the press was. These people were easily offended and the Act therefore needed a sifting process to eliminate such frivolous complaints. He said that with boards such as the ASA, one could easily mediate matters with correspondence to complainants which explained the issues.
The Chairperson said that the drafters would have to address the wording since if the problem was with the interpretation of the clause and there was no disagreement on this point, any ambiguity in Section 8(e) should be removed to indicate that the journalist would not be guilty of unfair discrimination.
The advocate representing Print Media Association was adamant that the Chairperson, Mr Moosa, was wrong in his reading of section 8(e) and argued that it stated clearly that if you propagate and publish offensive material under the section you would in fact be guilty of contravening the section.
The Print Media Association was still unhappy with the fact that a racist editorial could be censored. The reason for this dissatisfaction was demonstrated with a hypothetical example. A racist editorial was printed in two different newspapers. The newspapers, knowing its readers, could publish the same article for different purposes. To (a) show its readers how ridiculous the article is or (b) for the purpose of advocating hatred against a particular group. To tell the difference between the two situations was an almost impossible task as it was a highly subjective matter. It would require 'going into the minds' of people to determine what their intent was.
Ms Smuts (DP) commented that free speech is not a concept which encompasses only the things that people want to hear. She conceded that hate speech is something which must be curbed, but, it must be dealt with in a specific context (for example a person may be prohibited from carrying a hateful placard in a public gathering of a particular group to prevent the occurrence of imminent violence). Beyond this however, she did not feel that the proposed censorship was necessary as the common law already offers a remedy for the use of intentionally abusive language.
Mr Moonsamy (ANC) commented that he saw no reason why hate speech should not be banned as it incites groups against one another. He went so far as to say that hate speech should be criminalised.
Mr Turok (ANC) referred to the tension between the right to equality and the right to freedom of expression and argued that government was getting a raw deal in this area merely because they wanted to promote equality.
Mr Seleoane of the Freedom of Expression Institute said that the Bill actually reduced what the Constitution gave. They were not asking for unlimited, unfettered freedom of expression . He said that the least that should be done in terms of the Bill is that the freedom of expression given in the Constitution should not be reduced. He said that tension existed between all the rights in the Bill of Rights, not only between the rights to freedom of expression and equality. Thus he felt that this tension should not be resolved through legislation but rather by the courts who he said dealt much better with specific instances of these tensions.
Ms P Jana (ANC) doubted whether there was any contention that freedom of expression was a corner stone of democracy. She however doubted whether freedom of expression was the heart of democracy.
Another committee member insisted that freedom of expression was in fact at the heart of democracy and invited anyone to show him an example of where freedom of speech has inhibited democracy. The inhibiting of freedom of expression was in fact what caused many problems.
The Print Media Association advocate pointed out that according to a recent pronouncement of the Constitutional Court in the case of South African National Defence Union v The Minister of Defence, it was expressly said that freedom of expression was at the heart of democracy.
Balancing competing rights was difficult and she accepted that the Bill did in fact limit the freedom of expression . She said that there was no convincing argument that the limitation of the right to freedom of expression in the Bill was not reasonable and justifiable.
Mr S Pheko (PAC) wanted to know whether Print Media Association was totally against the Bill. He felt that the media had never really protected rights in South Africa, plus they were subjective and Eurocentric. He said that when the media spoke about freedom of the press, this was a Eurocentric concept in terms of which the press had to monopolise freedom, and freedom of expression was interpreted as freedom of expression of the media. The media had to become more objective.
Print Media Association responded that they were not opposed to the whole Bill.
Mr D Hanekom (ANC) felt that some members had wrongly taken the opportunity to slam the media. What was important in the debate was whether the provisions in the Bill, which were singled out were necessary or not. He felt that it would be ideal to achieve equality in society without any limit on freedom of expression. He said that if indeed hate speech did generate acts of hate and violence then the suppression of freedom of expression would need to take place. This was therefore what needed to be investigated. The members therefore had to be clear on whether the reporting of hate speech promoted it or not. It had been submitted that by allowing it, one allowed the opportunity to criticise it. Thus it may be a better thing to allow it than to suppress it. Many disagree with this but it had to be thought through. If it was better to express it in order to deal with it, then the expression of it had to be allowed and vice versa.
Mr A Marais (ANC) said that the habits of a highly deceptive media had been published in a certain article by Norman Soloman, which was very critical of the American media. It was said that they used euphemisms to advance ideas of yesterday but draped in such a manner that it was difficult for courts to take action, hence the notion of subliminal racism. He wanted to know whether the panel was different from what Norman Soloman criticised or whether they fell within what he criticised.
Adv S Holomisa (ANC) wanted to know who owned the media, and if it was still owned by members of the previously advantaged, that is, whites.
Mr Williams said that much transformation was taking place in the media in terms of the historically disadvantaged being empowered.
A member of the media panel stressed that the media did not support hate speech. S 16(2) of the Constitution was seen as already encompassing a good limitation on freedom of expression. It was reiterated that legislation should not take this further. He felt that the common law on limiting freedom of expression was adequate and should be publicised more.
Ms Pollecutt felt that the chapter in the Bill on promotion of equality had to be expanded and was very important. She spoke about the media development agency as well as the Freedom of Expression Institute's involvement in developing legislation to diversify the media and make sure that the ownership thereof is spread more to ensure more voices in the media.
A journalist pointed out that section 6 of the Bill was open to more than one interpretation and would thus fundamentally hinder her in doing her work since her world would be very uncertain. She said that she would not know when she could and could not report on certain things. She said that they were not there to perpetuate racism and hate speech. She said that without the press lots of racism would not be exposed. She said that clauses such as clause 6 would result in racism being privatised.
The Chairperson, Mr Moosa, said that it was not the intention of any of the members of the committee to limit the freedom of the media to report and disseminate information. He did not think that it was the intention of parliament or government to do so either. He said that there was not too much of a variance between what committee members and what the panel believed was the role of the media. The variance was at a more technical level concerning the challenges that the media may face given the way the Bill has been drafted. He wanted to engage with the media at precisely this level so that what the committee next received from the media were documents containing clauses which the media had drafted to deal this issue. He said that parliament had to pass a law outlawing hate speech and therefore these submissions by the media were necessary to ensure that their freedom of expression was in fact not hindered. The meeting was adjourned.
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