Access to Public Information, Content Regulation / Censorship
UPC Telekabel Wien GmbH v. Constantin Film Verleih GmbH
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Media outlets in South Africa requested permission to broadcast Oscar Pistorious’s trial. The court considered arguments against broadcasting the trial, including “effect on witnesses.” The North Gauteng High Court held that, with some exception, video and audio of the trial could be broadcast via television, radio, and the internet.
In this case, the High Court of South Africa, Gauteng Division, consolidated the petitions of several electronic, broadcast, and print media outlets, including Multichoice and Primedia, Media 24, and e.Tv. These media outlets sought the right to broadcast, the criminal proceedings of The State v. Oscar Leonard Pistorius, via audio, audio-visual, and photographic means (para 1). Pistorius, an Olympian who was on trial for the murder of his girlfriend, opposed all requests from the media to cover his trial (paras 2-3). The petitioning media argued for the right to cover the trial on the grounds that Pistorius is a “local and international icon.” Therefore, the media argued, his trial is a matter of public interest and, as such, his trial should be covered so as to inform the people “as exhaustively as possible” (paras 4 and 5).
The consolidated media further argued that the right to freedom of expression and principles of open justice required that the media be given full access to cover the trial, and the media cited section 16 of the South African Constitution. Section 16 grants the right of freedom of expression, including “freedom of the press and other media as well as the freedom to receive and/or disseminate information and ideas” (para 6).
Pistorius objected to media’s request on the grounds that a live broadcast of his criminal trial would “infringe his right to a fair trial” (para 12). The High Court agreed that it was this juxtaposition—the right to freedom of expression contrasted with the right of a defendant to receive a fair trial—that had to be weighed deciding this case (para 11). However, the High Court ultimately held that the media was to be allowed to make audio recordings and broadcast on the radio audio from the entire trial but limited only slightly the use of audio-visual recordings. The court prohibited the use of audiovisual recording during testimony by Pistorius and his witnesses (paras 25, 26; page 17, 18, 19).
Judge Mlambo began the court’s analysis by detailing the history of South African case law regarding freedom of expression, citing the Constitutional Court’s case, Khumalo and Others v Holomisa. In Khumalo, the court held “[t]he print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society” (para 7). The court then cited SA Broadcasting Corporation Ltd v Thatcher and Others, a similar case also dealing with a request from the media to broadcast a criminal proceeding (para 9). In SA Broadcasting Corporation Ltd, the court balanced the right to privacy and the right to freedom of expression, and the court ultimately held that limited coverage could be granted (para 9).
When assessing the media’s request, the court had to consider the delineation between the obligation to protect the right to a fair trial and the protection of the right to freedom of expression. Pistorius argued that allowing audiovisual equipment into the courtroom would “inhibit him as an individual as well as his witnesses when they gave evidence” (para 12). Pistorius also argued that in filming the proceedings, witnesses would gain knowledge from earlier testimony, which would potentially influence their testimony (para 12). For these reasons, Pistorius argued that he would not be able to have a fair trial (para 12). The court then turned to Section 173 of the South African Constitution, which states “[t]he Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent right to protect and regulate their own process, and to develop the common law, taking into account the interests of justice” (para 14). The court expanded upon this critical, constitutional requirement by citing case law that affirms that the interests of justice should be taken into account by any court (paras 15, 16). As such, the court applied a balancing test to assess how to address the requests of the media.
The court heeded the view put forth by the South African Supreme Court of Appeal: “Where constitutional rights have the potential to be mutually limiting…a court must necessarily reconcile them…by recongising a limitation upon the exercise of one right to the extent that it is necessary to do so in order to accommodate the exercise of the other…according to what is required by the particular circumstance…” (para 18). From here, the court admitted that the right to freedom of expression “is not immune from limitation” (para 19) and acknowledged the recognized danger of manipulation and distortion of facts by the media, as well as the subsequent harm to open justice that these acts of misrepresentation canp lead to (para 19).
The High Court rejected Pistorius’s objections to any audiovisual recording of his trial and argued that the principles of open justice require that court proceedings not be completely secluded from the public domain (para 22). The court then cited the South African Constitution, sections 34 and 35(3)(c), which requires that criminal proceedings be public (para 23). In rendering this verdict, the court upheld the balancing test as the standard. Additionally, the court found that, because it could potentially deprive Pistorius of his fair trial rights, audiovisual recording, televising, and photographing Pistorius and his witnesses while testifying would not be allowed. The court also held that audio coverage, which “does not carry the same inhibitory or intrusive potential as the audio-visual form of coverage,” would be allowed (paras 25, 26).
The court reiterated its belief that, because this trial was of great public interest, access to the proceedings should not be subjected to the blanket limitations requested by Pistorius (para 27). The full extent of permitted audiovisual and audio recordings and photography was detailed in a list. The list explicitly called for audio to be allowed throughout the entire trial and for audiovisual and photographic renderings to be allowed with limitations. Limitations included the prohibition on visually recording and photographing Pistorius and his witnesses during testimony, mentioned supra.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court’s decision to allow audio recording and radio broadcasting for the entirety of Pistorius trial and to allow limited audiovisual recording and photographs of the proceedings greatly expanded expression and freedom of the press in South African jurisprudence. The ruling is considered to be the first of its kind, allowing unprecedented access by the media into criminal proceedings. Grounded in principles of open justice, Judge Mlambo justified his ruling by saying “the justice system is still perceived as treating the rich and famous with kid cloves [sic] whilst being harsh on the poor…[e]nabling a large South African society to follow first-hand the criminal proceedings which involve a celebrity…will go a long way into dispelling these negative and unfounded perceptions about the justice system” (para 27).
 Farai Gundan, “South African Judge Gives Nod To Televising Murder Trial of Oscar Pistorius,” Forbes, available at http://www.forbes.com/sites/faraigundan/2014/02/26/south-african-judge-gives-nod-to-televising-murder-trial-of-oscar-pistorius/ (2/26/2014); Ridwaan Boda & Ashleigh Dore, “South Africa: Case Review: Multichoice (Pty) Ltd And Others v The National Prosecuting Authority And Oscar Leonard Pistorius,” Mondaq, available at http://www.mondaq.com/x/297788/Crime/Case+Review+Multichoice+Pty+Ltd+And+Others+v+The+National+Prosecuting+Authority+And+Oscar+Leonard+Pistorius (3/7/2014).
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Establishes persuasive precedent within its jurisdiction; as a High Court, it is binding on lower magistrate courts.
This case is a huge, unprecedented expansion of freedom of expression in South Africa, as such, it is sure to be cited widely throughout the region in future cases.
Let us know if you notice errors or if the case analysis needs revision.