Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The Supreme Court of Appeal of South Africa struck down two main provisions of Parliament’s rules and policies that prohibit live television broadcasting of incidents of disorder or altercation when Parliament is in session. The appeal had been brought by Primedia Broadcasting, an independent South African media company, and a number of local and international NGOs. The court reasoned that the provisions violate the right to an open Parliament and are unconstitutional and unlawful. The Court also found the government’s use of a device to temporarily disrupt cellular phones during the session without the permission of Parliament was unlawful.
On February 12, 2015, South African President Zuma was scheduled to deliver the annual State of Nation Address at a joint session of Parliament. As soon as the sitting began, the State Security Agency (Agency), without seeking permission from Parliament, used a device that disrupted telecommunication signals inside the Chamber, depriving members of the Parliament and journalists from using their cellphones to inform the public about the State of Nation Address.
The second incident during the joint session occurred when members of the Economic Freedom Fighters party (EFF) tried to ask President Zuma when he would pay back the money that had been spent on his private home in the town of Nkandla. The EFF MPs refused to back down and the Speaker of Parliament called upon security personnel to forcibly remove the members. As the security officials entered the Chamber, the broadcasting feed was focused on the Speaker and the Chairperson of the Council, thereby precluding the public from seeing the live interaction between the protesting members and the security staff.
Primedia Broadcasting together with other local and international NGOs, including the Right2Know Campaign and the Open Democracy Advice Center (appellants), sought an urgent order from the Western Cape Division of the High Court, declaring that the use of the jamming device, and the policies and rules of Parliament used to preclude the live coverage of the altercation between the EFF members and the security staff were unconstitutional.
Paragraph 188.8.131.52 of Parliament’s Policy on Filming and Broadcasting allows televising sessions even during the presence of “grave disorder or unparliamentary behavior,” but the coverage “must focus on the occupant of the Chair for as long as the proceedings continue or until the disorder has been restored.” [para. 18] Rule 2 of the Rules of Parliament regulating television broadcasting states that the director of the Sound and Vision of Parliament “should normally focus on the occupant of the Chair” in cases of grave disorder or unparliamentary behavior and is therefore less restrictive than the policy and confer a discretion on the director. A violation of these provisions constitutes a criminal offense punishable by a fine or imprisonment not exceeding one year.
The Western Cape Division of the High Court refused to issue the appellants’ relief, but granted leave to appeal to the Supreme Court of Appeal of South Africa.
The Supreme Court of Appeal agreed with the appellants that Sections 59 and 72 of the Constitution on access to and involvement in the National Assembly and the Council create a default position under which the public must be given access to parliamentary proceedings “unless there is strong justification for departing from it”. [para. 23] The Court, however, cautioned that “[t]he right to see and hear what happens in Parliament is not unlimited” [para. 30] but that any restriction must be “reasonable,” as expressly stated by Sections 59 and 72 of the Constitution. Section 59, for example, states that the National Assembly “may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society”.
The Court further reiterated that the test of reasonableness concerns not only “whether the limitation is proportionate to the end sought to be achieved, but also whether other measures would better achieve the end, or would do so without limiting others’ rights.” [para. 31]
The appellants argued that Rule 2 and Paragraph 184.108.40.206 of Parliament’s Policy on Filming and Broadcasting are unreasonable because they deprive the public from being able to see exactly what has happened. They also argued that the provisions serve no useful purpose, as the prohibition on broadcasting of a disorderly conduct does not prevent journalists in Parliament from reporting the incident. The appellants also argued that the right of public to an open parliament includes the right to know about incidents of grave disorder or unparliamentary behavior, including the right to know who caused such behavior and who regulates it.
On the other hand, Parliament officials argued that just as courts have the power to regulate which parts of proceedings are published or broadcast, so too Parliament has “the power to tailor the manner of the broadcast of sittings.” [para. 41] They argued further that the disruption provisions were necessary to “protect and promote the dignity of Parliament”. [para. 42] The officials stated that the public has a right to view “only the legitimate business of Parliament,” and that “incidents of disruption and disorderly behavior are the antithesis of legitimate Parliamentary business”. [para. 44]
The Court, however, held that the justifications given by Parliament did not survive constitutional scrutiny and concluded that both Rule 2 and Paragraph 220.127.116.11 were unconstitutional.
As to the use of the jamming device before the start of the president’s State of Nation Address, the government contended that the cellular disruption was accidental. The Agency said it was necessary to use the jamming device before the arrival of President Zuma and other high-ranking officials because of the threats posed by the potential presence of explosive devices in Parliament. The technician in charge had forgotten to switch off the device before the beginning of the session. Therefore, the Agency stated, the entire incident was a mistake and would not be repeated.
However the Court said that the question of whether the use of device was ever lawful still fell to be determined regardless of whether a mistake had given rise to the disruption of cellular phones on that day and might not be repeated.
The appellants contended that the use was in breach of the right to an open parliament and that it was in violation of Section 4(1) of the Powers Act, pursuant to which members of the security services “may enter upon or remain in the precincts [of Parliament] for the purpose of performing any policing function” but only with the permission of the Speaker or Chairperson. [para. 61]
The Court agreed with the appellants that if the security services are given unfettered power to take any action or use any device in Parliament, then Section 4(1) of the Powers Act lacks any meaningful purpose, as it expressly requires prior authorization to avoid interference with the ordinary function of Parliament. The Court, however, cautioned that its ruling should not be read to suggest that the use of any device or equipment by security services to execute legitimate policing function, without the permission of Parliament, is unlawful.
Accordingly, the Supreme Court of Appeal set aside the judgment of the Western Cape Division of the High Court and declared the following:
(a) Paragraph 18.104.22.168 of Parliament’s Policy on Broadcasting and Rule 2 of the Parliament’s Television Broadcasting Rules of Coverage are constitutional and unlawful for the violating the right to an open parliament;
(b) The manner in which the State of Nation proceedings in February 2015 was broadcast was unconstitutional and unlawful; and
(c) The use of a signal jamming device in Parliament, without the permission of Parliament was in contrary to Section 4(1) of the Powers, Privileges and Immunities of Parliament.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Supreme Court of Appeal expands freedom of expression by reaffirming the right to an open and transparent legislative body. In reaching its decision the Court addressed the restrictions at issue by striking a fair balance between that right and the government’s legitimate interest in preserving the integrity of its parliament.
It is also notable that in addressing the reasonableness of any limitations on the right to an open Parliament, the Supreme Court considered and compared corresponding international law. Parliament officials had argued that the disruption provisions were drawn directly from the rules of Parliament in the UK while the appellants referred to the rules of in Scotland, the European Union and the Indian lower house, the Lok Sabha, whose legislatures allow uncensored broadcasts of proceedings. However, the Court said it must determine the constitutionality of the disruption provisions in the context ‘of our democracy and the provisions of the Constitution’.
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.
The Supreme Court of Appeal functions only as a court of appeal and is, except for constitutional matters where the Constitutional court has final authority, the highest court of appeal. Decisions of the court are binding on all lower courts.
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