Sanoma Uitgevers B.V. v. The Netherlands
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The Broadcasting Complaints Commission of South Africa (BCCSA) held that a television program on a news channel had infringed its Code of Conduct by featuring an interview with a COVID-19 conspiracy theorist who made a number of false statements about the pandemic. After the program was broadcast, a civil society organization approached the BCCSA, seeking sanctions against the news channel on the grounds that the broadcast had been based on facts that were false, it had not contained sufficient opposing views and was harmful to children. The BCCSA noted the “life-and-death” consequences of denying the existence of COVID-19 and stated that it had to balance the right to freedom of expression with the need to protect South Africans from harm caused by misinformation [para. 22]. In finding that the broadcast had breached the obligations that comment be based on facts that are truly stated, fairly indicated or referred to, the BCCSA imposed a fine on the broadcaster and ordered it to broadcast an apology.
On July 22, 2020, the South African news channel, eNCA, broadcast an episode of its regular program “So what now?”, hosted by Gareth Cliff, which included an interview with David Icke, a known Covid-19 conspiracy theorist. The program was also broadcast a day later on eNCA’s terrestrial channel, eTV, and remained accessible on eNCA’s website. As a channel on the broadcast satellite service, DStv, eNCA is obliged to comply with the Code for Subscription Broadcasting Licensees and by broadcasting on the eTV terrestrial channel it is obliged to comply with the Free-to-Air Code for Broadcasting Licensees. These codes are published in terms of the Independent Broadcasting Authority Act, 153 of 1993.
Media Monitoring Africa (MMA), a South African civil society organization concerned with media ethics, media quality and media freedom, lodged a complaint with the Broadcasting Complaints Commission of South Africa (BCCSA) against eNCA and eTV. MMA described the broadcast as a “clear example of disinformation pertaining to the COVID-19 pandemic”, and defined “disinformation” as being “verifiably false or misleading information created, presented and disseminated for economic gain or to intentionally deceive the public” [para. 8 of complaint]. It referred to the 2017 Joint Declaration on Freedom of Expression and ‘Fake News’, Disinformation and Propaganda in noting the impact of disinformation on the exercise of freedom of expression, and highlighted that COVID-19 disinformation in South Africa had been criminalized in the regulations issued under the Disaster Management Act, 57 of 2002. MMA submitted that eNCA and eTV’s broadcast of “So what now?” was harmful because it “intentionally disseminated disinformation based on facts that were untrue”, “promoted unlawful conduct that was in violation of the regulations issued under the Disaster Management Act” and by “denying the existence of COVID-19 and claiming it to be a scam”. [para. 12 of complaint].
On July 22, 2020, eNCA responded to the complaint laid by MMA. MMA replied to eNCA’s response on August 21, 2020.
The BCCSA is an independent judicial tribunal, recognized by the Independent Broadcasting Act, which adjudicates complaints against broadcasters made by the public.
Prof HP Viljoen delivered the unanimous judgment of the three-commissioner Tribunal. The Tribunal characterized the central issue as being whether eNCA has “the right to give an opportunity to even a so-called conspiracy theorist to use the airwaves to vent his opinion” [para. 7].
In its complaint MMA raised three grounds of complaint: that the broadcast was not based on facts that are true; that it violated the duty to present opposing points of view; and that the broadcast did not protect child viewers. MMA set out the false statements made by Icke: he had called COVID-19 a “pandemic hoax”; stated that there was a scam in the communication of information; claimed that the World Health Organization “was created by people like the Rockerfeller family to control global health policy from a central point”; said that the WHO Secretary-General was “an asset of Bill Gates, who owns the WHO”; and maintained that “there is no virus” and that there was no scientific evidence of the virus [para. 14 of complaint]. MMA submitted that denying the existence of COVID-19 was “harmful and dangerous” and viewers of the program could believe Icke’s assertions and fail to take the necessary health precautions. MMA stressed that “[i]n the midst of a public health crisis, it is particularly important that even commentary must be justified on true facts” [para. 18 of complaint].
MMA also noted that during the interview with Icke there was no alternative viewpoint provided and submitted that Cliff – as host of the program – had not provided sufficient counter positions in response to Icke’s position.
MMM argued that the Subscription Broadcast Code of Conduct requires that when there is significant material that is unsuitable for children that must be broadcast proportionately later into the watershed period and that the eNCA broadcast was only 30 minutes into that period and that it remains accessible on the eNCA website, which “poses a significant risk of children viewing the broadcast to their detriment” [para. 24 of complaint].
MMA described the broadcast as “reckless and irresponsible” and characterized eNCA and eTV has having “shown no concern for the harm that the broadcast has the potential to cause” [para. 25 of complaint], and referred to the South African Constitutional Court case of Khumalo v. Holomisa  ZACC 12 which had emphasized that there was a duty on the media to be “scrupulous and reliable” in order to strengthen democracy [para. 20 of reply]. It requested the BCCSA issue an appropriate sanction, which it suggested could be an order to broadcast a correction or impose a fine of up to R80 000 (approximately US$6 000 in June 2021).
eNCA responded to MMA’s complaint and denied that broadcast had “intentionally disseminated disinformation”, promoted conduct in contravention of the Disaster Management Act regulations or had led to people violating health regulations [para. 10 of response]. It added that it believed MMA had misinterpreted the Code of Conduct and that instead of the Code requiring that broadcasts be based on “facts that are true and justifiable”, they need only be based on “facts truly stated or fairly indicated and referred to” [para. 15 of response].
eNCA characterized the interview being about freedom of expression, “the control of information” and “who gets to express their views when such views may be unpopular or challenge the official narrative” and that those with differing viewpoints should not be repressed [paras. 13 and 20 of response]. eNCA argued that Cliff had introduced Icke’s views as being his opinions and stated that he did not agree with them, and maintained that Icke’s comments were based on his honest opinion. eNCA referred to the South African Constitutional Court case of The Citizen 1978 (Pty) Ltdv. McBride 2011 (4) SA 191 (CC), in submitting that the right to express “extreme, unjust, unbalanced, exaggerated and prejudiced” views are protected by the Constitution [para. 21 of response].
eNCA argued that the Code does not require the presence of opposing views for “one-on-one” interviews because, as mentioned by the BCCSA Tribunal case of P Rautenbach v. Electronic Media Network (case number 02/2007), those interviews do not involve the any discussion. In the alternative, eNCA submitted that Cliff had provided sufficient opposing views.
eNCA denied that the broadcast would be harmful to children, and submitted that it had been broadcast during the watershed period at that parents would be able to access parental control measures to prevent their children watching eNCA.
The Tribunal referred to the cases of South African Defence Union v. Minister of Defence 1999(4) SA 469 (CC) and Independent Newspapers Holdings Ltd v. Suliman 2005 (7) BCLR 641 (SCA) in recognizing the importance of the right to freedom of expression in South Africa while acknowledging that there are limits to this right and that the rights to freedom of expression and to not be offended by a broadcast have to balanced. The Tribunal noted that as South Africa allows for rights to be restricted in terms of the general limitations clause in section 36 of the Constitution (as long as the limitation is reasonable and justifiable in an open and democratic society), eNCA’s right to freedom of expression could be limited by “other rights of the viewing public, like the right to dignity, the right to receive information or ideas, etcetera” [para. 8].
In respect of MMA’s complaint that the broadcast was based on facts that were untrue, the Tribunal held that MMA was mistaken that the facts upon which opinions are stated must be true as all that the Codes require is that the “comment must be an honest expression of opinion and that it must appear clearly to be comment and must be made on facts truly stated or fairly indicated and referred to” [para. 19]. The Tribunal referred to its case of Madibeng Local Municipality v.M-Net Case No. 15/2015 in defining what is required by the Code, and quoted the case of Mthembi-Mahanyele v. Mail & Guardian 2004 (6) SA 329 (SCA) which had held that “[e]rrors of fact should be tolerated, provided that statements are published justifiably and reasonably” [para. 19]. In finding that Icke’s comments were neither reasonable nor justifiable, the Tribunal noted that it was “irresponsible if not reckless to talk of the ‘pandemic hoax’ and to state that ‘there is no virus’” [para. 20]. The Tribunal rejected eNCA’s argument that a broadcaster is permitted to broadcast views that are “genuinely held” by the speaker, and emphasized that those comments must still be justifiable and reasonable. It noted that protecting comment “cannot mean that any comment, how far- fetched, how irrational it might be, will be protected if the commentor expresses a view on what he sincerely seemed to perceive the facts to be”, and gave the example of someone seriously believing the earth was flat as a counterpoint to eNCA’s position [para. 22]. The Tribunal highlighted that the subject matter of the Icke statements “would have life-and-death consequences on society at large” and so distinguished the present case from previous cases before it which concerned matters of public importance which were not as grave and which had involved debates between people with different views. The Tribunal commented that South Africans were weary of the pandemic and the safety measures, and that if they believed Icke “people would probably disobey all the regulations” which could have led to people dying [para. 22]. The Tribunal referred to its case of Grové v. e-tv Case No. 29/2004 which had emphasized that limitations to the right to freedom of expression can be implemented “based on considerations of harm and misinformation” and held that it should limit the comments in the “So what now?” episode “not because we want to chip away at the basic freedom of expression but because we see it as our duty to protect the people of South African from harm being caused by the obvious misinformation contained in the broadcast” [para. 22]. Accordingly, the Tribunal held that eNCA “clearly exceeded the limits of freedom of expression” [para. 22].
In respect of the Codes’ requirements that opposing views be presented, the Tribunal reiterated that the purpose of the presentation of opposing views is to “obtain balance in the programme so that the viewers/listeners can objectively decide for themselves what viewpoint to support” [para. 23]. It rejected eNCA’s argument that the purpose of the Icke interview was to highlight freedom of expression and characterized the interview as being about Icke’s views on COVID-19 and the pandemic. However, the Tribunal held that the segment of the episode involving Icke was an interview and not a discussion, and so there was no obligation on eNCA to provide opposing views.
The Tribunal noted that the program “So what now?” was not a children’s program, was not targeted at children and that it was “not so unsuitable for children that it should have been broadcast later in the evening” [para. 18]. It held that the broadcast had not infringed the Codes’ obligations to protect children.
Accordingly, the Tribunal held that the comments made by Icke had contravened the obligation that comment be made on “facts truly stated or fairly indicated and referred to” as Icke’s comments were not reasonable and justifiable, but did not infringe the obligations to provide opposing views and to protect children. It added that it did not have jurisdiction to order the removal of the broadcast from eNCA’s website as its jurisdiction does not extend to publication of any material on the internet.
After receiving submissions from MMA and eNCA on the appropriate sanction to be imposed, the Tribunal noted that – even though it could not order the removal of the broadcast from eNCA’s website – the fact that it remained accessible raised questions about eNCA’s sincerity in offering to apologize for the broadcast. The Tribunal held that “the potential harm to the population with this broadcast, and the host of the programme falling short by far to counter the misinformation divulged by Mr Icke, justify the imposition of a fine of R10 000 [approximately US$720 in June 2021]” [para. 30]. It also ordered that – and provided the text – an apology be broadcast at the beginning of the next episode of “So what now?”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment reiterates the South Africa position that comment must be reasonable and justifiable for it to be permitted in media broadcasts and – particularly in the context of a global pandemic – balanced the need to promote freedom of expression with the need to protect listeners from harm caused by hearing misinformation.
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