LCR4803
notes
Summarised
MEDIA LAW
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Freedom of speech: the underlying philosophy
Kinds of censorship
1. Autonomous censorship (self-control)
a. Ideal form of censorship: the individuals impose it on themselves
2. Social censorship
a. Censorship of speech and movement expected from the individual for the sake of social harmony
b. Community imposes certain codes of good conduct and good manners
3. State censorship as part of the criminal law system
a. extension of social censorship since rules formulated by the community to determine what may and may
not be said freely, may be incorporated in rules enforced by the police, the courts and similar
institutions
b. May assume one of two forms:
i. A priori censorship or anticipatory control
1. preventative censorship: particular person or instance is given the authority to examine
beforehand what will be said, written, published or performed.
ii. Punitive censorship or penal censorship
1. Prior permission for the distribution of information need not be sought, but fines,
punishment, imprisonment or compensation may be imposed on those r esponsible for
the distribution of information, in whatever form, if it is beyond certain bounds laid
down by the law.
2. Preferable to other forms mentioned as it creates a situation of legal certainty and the
specific Act which creates the limitation usually requires intention from the accused.
4. Administrative state censorship
a. Person is free to create communication material, to distribute it and even to possess it. Should an
administrative body, however, later find that such material is undesirable, the pers on's conduct may be
found to be an offence.
5. Voluntary or internal censorship
a. Individuals or instances come to a mutual agreement, without any legal duty being imposed upon them,
to submit themselves voluntarily to certain restrictions on the information they may distribute.
6. Concealed censorship
a. Some people in positions of authority use their power to bring about censorship,
Freedom of speech and expression: the South African Constitution
Freedom of expression
Section 16 of the Constitution: freedom of speech clause:
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; and
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; or
c. advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to
cause harm.
• Bill of Rights does not contain a hierarchy of values in respect of the various fundamental rights.
• Freedom of expression will frequently have to be weighed against many other fundamental rights
Access to information
Section 32 determines the following:
1. Everyone has the right of access to
a. any information held by the state; and
b. any information that is held by another person and that is required for the exercise or protection of any
rights.
2. National legislation must be enacted to give effect to this right, and may provide for reasonable measur es to
alleviate the administrative and financial burden on the state.
Right to privacy
Section 14 determines the following:
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1. Everyone has the right to privacy, which includes the right not to have
a. their person or home searched
b. their property searched
c. their possessions seized; or
d. the privacy of their communications infringed.
Limitation of rights
Section 36 determines the following:
1. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the
limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and
freedom, taking into account all relevant factors, including
a. the nature of the right
b. the importance of the purpose of the limitation
c. the nature and extent of the limitation
d. the relation between the limitation and its purpose; and
e. less restrictive means to achieve the purpose
2. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right
entrenched in the Bill of Rights.
Limitations that are constitutionally justifiable can be created in two ways:
1. Intratextually: by a section of the Constitution itself:
a. usually done by formulating the right restrictively
b. can also be created by means of the interaction of the different rights.
2. Extratextually, by “non-supreme, non-constitutional” legal rules which are also of a general nature and in
accordance with the guidelines laid down by the Constitution in this regard
Infringement of any of the fundamental rights in chapter 2 is permissible when following 4 requirements are met:
1. A right may be limited only by law of general application
a. Legislation must apply generally, and not to individual cases alone.
2. The limitation must be reasonable
a. Reasonableness is determined by means of objective norms
b. Reason for the limitation must be of sufficient importance to warrant overriding a constitutionally
protected right or freedom
3. Limitation has to be justifiable in an open and democratic society based on human dignity, equality & freedom
4. Proportionality
a. Limitation is permissible to the extent that it is reasonable and justifiable
b. Limitation should be important enough for a greater value to be attached to it than to the ratio for the
protection of the right.
c. Way in which the limitation operates, should be in relation to the desired objective
Interpreting the Bill of Rights
Section 39 determines the following:
1. When interpreting the Bill of Rights, a court, tribunal or forum
a. must promote the values that underlie an open and democratic society bas ed on human dignity,
equality and freedom
b. must consider international law; and
c. may consider foreign law.
2. When interpreting any legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
3. The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred
by common law, customary law or legislation, to the extent that they are consistent with the Bill.
The press and printed matter
Press organisations
1. Print Media SA
a. Umbrella organisation
b. Primary functions:
i. market print media
ii. lobby and debate print issues with government and other stakeholders
iii. interact with other newspaper industry bodies on matters of mutual interest
iv. promote and market the use, benefit and value of print media in every way, in preference to
other types of media
2
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notes
Summarised
MEDIA LAW
Revision Pack
, lOMoARcPSD|9627311
Stuvia.com - The study-notes marketplace
Freedom of speech: the underlying philosophy
Kinds of censorship
1. Autonomous censorship (self-control)
a. Ideal form of censorship: the individuals impose it on themselves
2. Social censorship
a. Censorship of speech and movement expected from the individual for the sake of social harmony
b. Community imposes certain codes of good conduct and good manners
3. State censorship as part of the criminal law system
a. extension of social censorship since rules formulated by the community to determine what may and may
not be said freely, may be incorporated in rules enforced by the police, the courts and similar
institutions
b. May assume one of two forms:
i. A priori censorship or anticipatory control
1. preventative censorship: particular person or instance is given the authority to examine
beforehand what will be said, written, published or performed.
ii. Punitive censorship or penal censorship
1. Prior permission for the distribution of information need not be sought, but fines,
punishment, imprisonment or compensation may be imposed on those r esponsible for
the distribution of information, in whatever form, if it is beyond certain bounds laid
down by the law.
2. Preferable to other forms mentioned as it creates a situation of legal certainty and the
specific Act which creates the limitation usually requires intention from the accused.
4. Administrative state censorship
a. Person is free to create communication material, to distribute it and even to possess it. Should an
administrative body, however, later find that such material is undesirable, the pers on's conduct may be
found to be an offence.
5. Voluntary or internal censorship
a. Individuals or instances come to a mutual agreement, without any legal duty being imposed upon them,
to submit themselves voluntarily to certain restrictions on the information they may distribute.
6. Concealed censorship
a. Some people in positions of authority use their power to bring about censorship,
Freedom of speech and expression: the South African Constitution
Freedom of expression
Section 16 of the Constitution: freedom of speech clause:
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; and
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; or
c. advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to
cause harm.
• Bill of Rights does not contain a hierarchy of values in respect of the various fundamental rights.
• Freedom of expression will frequently have to be weighed against many other fundamental rights
Access to information
Section 32 determines the following:
1. Everyone has the right of access to
a. any information held by the state; and
b. any information that is held by another person and that is required for the exercise or protection of any
rights.
2. National legislation must be enacted to give effect to this right, and may provide for reasonable measur es to
alleviate the administrative and financial burden on the state.
Right to privacy
Section 14 determines the following:
1
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1. Everyone has the right to privacy, which includes the right not to have
a. their person or home searched
b. their property searched
c. their possessions seized; or
d. the privacy of their communications infringed.
Limitation of rights
Section 36 determines the following:
1. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the
limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and
freedom, taking into account all relevant factors, including
a. the nature of the right
b. the importance of the purpose of the limitation
c. the nature and extent of the limitation
d. the relation between the limitation and its purpose; and
e. less restrictive means to achieve the purpose
2. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right
entrenched in the Bill of Rights.
Limitations that are constitutionally justifiable can be created in two ways:
1. Intratextually: by a section of the Constitution itself:
a. usually done by formulating the right restrictively
b. can also be created by means of the interaction of the different rights.
2. Extratextually, by “non-supreme, non-constitutional” legal rules which are also of a general nature and in
accordance with the guidelines laid down by the Constitution in this regard
Infringement of any of the fundamental rights in chapter 2 is permissible when following 4 requirements are met:
1. A right may be limited only by law of general application
a. Legislation must apply generally, and not to individual cases alone.
2. The limitation must be reasonable
a. Reasonableness is determined by means of objective norms
b. Reason for the limitation must be of sufficient importance to warrant overriding a constitutionally
protected right or freedom
3. Limitation has to be justifiable in an open and democratic society based on human dignity, equality & freedom
4. Proportionality
a. Limitation is permissible to the extent that it is reasonable and justifiable
b. Limitation should be important enough for a greater value to be attached to it than to the ratio for the
protection of the right.
c. Way in which the limitation operates, should be in relation to the desired objective
Interpreting the Bill of Rights
Section 39 determines the following:
1. When interpreting the Bill of Rights, a court, tribunal or forum
a. must promote the values that underlie an open and democratic society bas ed on human dignity,
equality and freedom
b. must consider international law; and
c. may consider foreign law.
2. When interpreting any legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
3. The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred
by common law, customary law or legislation, to the extent that they are consistent with the Bill.
The press and printed matter
Press organisations
1. Print Media SA
a. Umbrella organisation
b. Primary functions:
i. market print media
ii. lobby and debate print issues with government and other stakeholders
iii. interact with other newspaper industry bodies on matters of mutual interest
iv. promote and market the use, benefit and value of print media in every way, in preference to
other types of media
2
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