Case Summary and Outcome

A television broadcaster created a documentary about a murder, and, fearing that the documentary would prejudice the upcoming trial, the Director of Public Prosecutions (DPP) requested a screening of the documentary, which the broadcaster denied. In evaluating an order granting the DPP the right to screen the documentary before its publication, the Supreme Court of Appeal held that state may reasonably limit publications by the press that would hinder the administration of justice in a trial. However, the state cannot interdict the publication of a story based on an unfounded inference that the story might contain information that could interfere; rather, the state must have affirmative evidence that interference can be reasonably inferred prior to restricting the right of publication.

Facts

In June 2005, four men gained access to a woman’s home, took her child, and later murdered that child. This crime received extensive media coverage. The appellant, a television broadcaster called e-tv, decided to create a documentary chronicling the events of the crime and its impact on the family. E-tv conducted interviews with several people close to the family who were aware of the situation. It intended to broadcast the documentary only after the assailants were arrested.

In July, five individuals were arrested and charged for the above-mentioned crime. Accordingly, e-tv scheduled a broadcast of its documentary. After becoming aware of the impending release of the documentary, the DPP asked e-tv to allow him to pre-screen the documentary to make sure that it would not prejudice the forthcoming trial.

While the parties commenced discussions on a screning, no agreement was made to allow the DPP to screen the documentary. In conjunction with his request to e-tv, the DPP sought an order with the High Court at Cape Town. The order, which the Court granted, prohibited the broadcast until the DPP had the opportunity to both screen the documentary and institutes any proceedings he might consider necessary. E-tv appealed the decision.

Since the decision, other events overtook the DPP’s objection, which has been withdrawn. These events make the appeal moot as to the merits of the case. However, the appellate court, believing that fundamental constitutional principles were at play, chose to render a decision on the case. The court does so to clarify the law regarding freedom of expression and also to provide guidance to future courts.

Decision Overview

The court began its decision by first recognizing that freedom of the press is constitutionally guaranteed by section 16 of the South African Bill of Rights, which th court called indispensable to democracy. However, the court then spent a great deal of time recognizing that freedom of the press, like other constitutional promises, can be infringed upon in certain circumstances. Specifically, section 36 of the South African Constitution allows a limitation of another constitutional protection, but only if the limit has its source in the law of general application and is both reasonable and justifiable.

Accordingly, the court noted that freedom of the press can be limited if there is an overarching concern, which is raised by the speech in question. Specifically, freedom of press can be limited when the publication in question has the potential to limit another constitutional right. In the present case, the concern was whether the publication of e-tv’s documentary, which touches upon e-tv’s guaranteed freedom of press, would impinge on some other constitutional right. Additionally, the court considered whether the publication would curtail the common law rule that the proper administration of justice may not be prejudiced or interfered with.

In its analysis of the issue, the court noted that any ban on speech must be proportional to the speech’s interference with the administration of justice. The court specifically noted, “[i]n summary, a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place.” The court does envision a time when the interdict of a publication should be considered: when a risk of interference is clearly established.

However, the court also recognized that “mere conjecture or speculation that prejudice might occur will not be enough” to allow a prohibition of speech. Rather, the party seeking the prohibition must provide concrete evidence from which the court can reasonably inferred that the speech carries such a risk of interference with a case that prohibition is necessary.

In the present case, the DPP failed to show that the speech carried this level of risk. As the DPP had not yet seen the documentary, the DPP could only offered speculation that the documentary would interfere with the case. Based on standards set forth in other cases, the court stated, “before a ban on publication will be considered is a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice, substantial prejudice if it occurs, and a real risk that the prejudice will occur.”

Accordingly, “[the publication’s challenger] must expect that freedom will not be abused until he has adequate grounds for believing the contrary.” Consequently, the court overturned the decision allowing the DPP to interdict the publication. The court held that the DPP had no qualified right to screen the documentary prior to publication; rather DPP had to trust that the exercise of freedom would not be abused until there is adequate evidence of the contrary.