Case Summary and Outcome
The Constitutional Court of South Africa, confirming the High Court’s ruling, held that legislative provisions in the Films and Publications Amendment Act, 2009 which required publishers to submit publications containing certain categories of “sexual conduct” for examination before publication were unconstitutional. The Court reasoned that the administrative prior classification provided for under the Act amounted to a form of prior restraint which is a drastic interference with freedom of speech that should only occur where there is a substantial risk of grave injustice which was not the case here where less restrictive means could be unemployed. Accordingly, the Act’s prior classification system was an unjustifiable limit to the right to freedom of expression.
The Films and Publications Amendment Act (the Act) was adopted by the South African legislature in 2009. The Act required all publishers of material that “contains” sexual conduct, advocated propaganda for war, incited hatred or advocated violence to submit their publication for examination before publication (para. 14). An administrative board was empowered either to ban the publication, to impose restrictions on its distribution (such as an adult-only limit) or permit its free distribution following examination (para. 15). The Act therefore established a regulatory system of prior restraint. It also imposed criminal sanctions of up to five years imprisonment for failure to comply with the classification provisions (para. 14), irrespective of whether or not the publication was later classified. The Act did exclude “bona fide” newspapers from its requirements, and allowed for documentaries and scientific research to be classified differently from other publications (para. 15).
Print Media – an association of independent publishers – and the South African Editors Forum approached the High Court seeking an order that sections 16(1), 16(2), 16(2)(a) and 24A(2)(a) of the Act were unconstitutional. Section 16(1) permitted an individual to request that a publication be classified. Section 16(2)(a) was the provision that required publishers of material containing sexual conduct to subject that material to examination before its publication. Section 24A(2)(a) contained the criminal offences for failing to subject a publication for examination.
The High Court ruled that section 16(1), 16(2), 16(2)(a) and 24A(2)(a) were unjustifiable limitations of the rights to freedom of expression and equality and infringed the principle of legality. The High Court held that section 16(2)’s over-breadth could be cured by replacing the word “contains” with “advocates or promotes” in respect of the type of publications involving sexual conduct that needed to be submitted for classification. The High Court also read in “magazines” to the exemption that newspapers had under the legislation and slightly narrowed the scope of the criminal sanctions provisions in section 24 (para. 19).
The matter was referred to the Constitutional Court for confirmation following the High Court’s finding of unconstitutionality.
Skweyiya J delivered the majority judgment.
The Constitutional Court was required to determine whether the High Court was correct in holding that sections 16(1), 16(2) and 24A(2)(a), the provisions which regulated the classification of publications containing sexual conduct, were unconstitutional. The Constitutional Court had to determine whether the provisions limited the right to freedom of expression protected by section 16 of the Constitution, and if so, whether the limitation was justifiable.
Two amici curiae were admitted in the Constitutional Court: the Justice Alliance of South Africa (JASA), which described itself as a “non-profit association, whose key objective is to uphold and develop Judeo-Christian and constitutional values by means of litigation and involvement in legislative processes” (para. 6); and the non-governmental organization, Section 16, whose objectives are “the expression of opinions on the development of the law, to ensure individual liberty and to advocate for law reform in respect of freedom of expression and access to information” (para. 7).
Print Media submitted that the alteration of the wording of the Act’s provision by the High Court was correct, and that the constitutional defects could be cured if the Act required only that material which “advocates or promotes the objectionable sexual conduct”, rather than “contains” that material, would be required to be examined (para. 24). Print Media also argued that because of the wide application of the provisions, and the exemption only of newspapers, “numerous mainstream publications fall to be submitted for classification before they may become publicly available, even if they are manifestly in the public interest” which would “impose severe financial and practical burdens on publishers” (para. 21). In addition to the over-breadth of the provisions, Print Media argued that the fact that publishers faced criminal sanctions for failing to submit their publications for examination would lead to self-censorship and that the Act would therefore have a chilling effect on the exercise of freedom of expression (para. 23). Print Media submitted that freedom of expression is “not the sole preserve of those who would express lofty, noble or merely inoffensive sentiments, but should enable individuals to convey and receive views on a wide range of matters” (para. 22).
Print Media also argued that the exclusion of magazines from the exemption was irrational as magazines are subject to the Press Council in South Africa in the same way as newspapers (para. 25).
The Minister of Home Affairs accepted that the requirement that publications depicting sexual conduct be submitted for examination before publication was a limitation to the right to freedom of expression, but argued that it was justifiable under section 36 of the Constitution. Section 36 is a general limitations clause and permits limitations to constitutional rights “in terms of a 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”. Courts adjudicating the justifiability of a limitation are required, in terms of section 36, to take into account the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and whether there are less restrictive means by which to achieve the limitation’s purpose.
The Minister submitted that the purpose of the Act was to “to inform consumer choice, to prevent the exposure of children to age-inappropriate material and to ban child pornography” (para. 27) and that these goals justified the limitation of the right. In addition, he argued that replacing the word “contains” with “advocates or promotes” would undermine the purpose of the Act (para. 27). He also submitted that the Act’s scope could be limited by interpreting it as only applying to “visual images of sexual conduct” (para. 27). The Minister argued that it was not possible to exempt magazines from the Act’s scope as, unlike newspapers, not all magazines were subject to the Press Code (para 29).
JASA submitted that the provisions limited the right to freedom of expression but that the limitation was justifiable. It argued that “objectionable sexual conduct … cannot be said to lie at the heart of the right to freedom of expression” (para. 30).
The other amicus, Section 16, argued that the provisions were an unjustifiable limitation to the right to freedom of expression as there were less restrictive ways by which to achieve the goals of the legislation (para. 34). It submitted that there was no justification for the prior restraint system and that the chilling effect created by the Act was unconstitutional (para. 36). In addition, it argued that the system was unworkable and would impose severe financial burdens on publishers (para. 38), and that because newspapers were exempt they were effectively subjected to a different regulatory regime to magazines and other publications and that this was irrational (para. 37).
Skweyiya explained that Print Media’s objection to the legislative provisions was “against the administrative prior classification scheme created by the Act, and not against the concept of classification” (para. 42). He said that the case was about “the right to freedom of expression, to be considered in the light of the government’s objective to regulate, through classification, publications that may constitute, among other things, indecent material” (para. 39).
However, Skweyiya said that “it is necessary first to ask whether administrative prior classification of material depicting sexual conduct is constitutionally acceptable in the circumstances of this case” (para. 43). Skweyiya described the classification regime established by the Act as one of “administrative prior classification” (para. 16). He said that “[u]nder this model of prior classification, control is exercised before publication by an administrative body under the control of the executive branch of government” (para. 16), and that “[t]his amounts to a form of prior restraint, which is an inhibition on expression before it is disseminated” (para. 16).
He undertook an analysis of South African and foreign jurisprudence on the constitutionality of prior restraint, and said that the South African Supreme Court of Appeal in Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) had been correct when it quoted with approval the U.K. case of Attorney-General v British Broadcasting Corporation  AC 303 (CA). In those cases it was accepted that as prior restraint is a “drastic interference with freedom of speech” it should only occur “where there is a substantial risk of grave injustice” (para. 44). Skweyiya commented on the U.K. system where “the rule against prior restraint was applied exclusively through the common law and more recently through statute [section 12(3) of the Human Rights Act 1998]” (para. 45). He said that in the U.S. the rule is also strictly applied, and has fewer exceptions than in other countries (para. 45). The European Court of Human Rights, in Mosley v. United Kingdom (2011) 53 EHRR 30 and The Observer and The Guardian v. United Kingdom (1991) 14 EHRR 153, and Canada, in Little Sisters Book and Art Emporium v. Canada  2 SCR 1120, had also addressed the issue.
On this point, Skweyiya concluded that the prior classification system was an unjustifiable limit to the right to freedom of expression (para. 46).
Skweyiya then assessed whether sexual conduct is a form of expression protected under the right to freedom of expression in section 16 of the Constitution (para. 47). Section 16(2) of the Constitution explicitly excludes “propaganda for war”, “incitement of imminent violence” and “advocacy of hatred that is based on race, ethnicity, gender or religion” from the protection of the right. Skweyiya said that as sexual conduct is not textually excluded from the right’s protection it does constitute expression that is protected by the Constitution (para. 49). Accordingly, Skweyiya moved on to whether the system of prior classification of material containing sexual conduct was constitutionally permissible (para. 50).
Skweyiya first concluded that as the system regulates the publication of protected expression it constitutes a limitation on the right (para. 51), and it was therefore necessary to determine whether the limitation was constitutionally permissible (para. 52). Skweyiya said that the right to freedom of expression “encompasses the freedom to form one’s own opinion about expression received, and in this way both promotes and protects the moral agency of individuals” (para. 53), and highlighted that “one also cannot neglect the vital role of a healthy press in the functioning of a democratic society” (para. 54). Skweyiya looked at the purpose of the Act, and that its goals (of providing consumer advice, protecting children from harmful expose to age-inappropriate material and to prevent child pornography) were designed to be achieved through its system of prior classification (para. 55). Skweyiya referred to section 28(2) of the Constitution which protects the rights of children and said that “little can be said to controvert the importance of the ban on child pornography and the protection of children from exposure to inappropriate materials” (para. 56). He recognised that “[t]he ostensible purpose of section 16(2)(a) appears to me to align itself with the adage, ‘prevention is better than cure’” but said that “it is of vital import to determine whether the conventional approach of prevention through deterrence under threat of punishment, on the one hand, as opposed to prevention through the upfront restriction of free action, on the other, strikes the appropriate balance” (para. 57).
Skweyiya then analysed the nature and extent of the limitation to the right. He said that “administrative prior classification entails a transfer of control from the right-bearer [the publisher], seeking to exercise the right to freedom of expression, to an administrative body” (para. 58) and that the publisher’s “liberty to exercise freely his right to freedom of expression is curtailed” (para. 58). Skweyiya commented that the academic research demonstrates that under systems of prior restraint authorities are more likely to classify publications than in systems where classification occurs after publication (para. 59). He added that the right is further threatened by the delays in publication that the system creates, as “the very delay in bringing important information to the public’s attention makes inroads into the right to freedom of the press and other media” (para. 60).
Skweyiya then looked at the relation between the limitation and the means chosen to achieve its aim and whether there were less restrictive means that could have been adopted. He said that as there are other provisions in the Act which govern the publication of child pornography it is clear that section 16(2) is not the only way in which children’s exposure to pornography could be regulated (para. 63). Skweyiya held that there would be other, less restrictive means in which to achieve the purpose of section 16(2) and said that a court interdict is one such measure (para. 66). He said that as a court faced with an application for an interdict of publication or distribution is “required to balance carefully various factors and rights, relating to both the right-bearer and the party seeking the restraint” (para. 66). He explained that the party seeking the restraint bears the onus of proving the need for restraint, and that this permits the exercise of freedom of expression until that need is demonstrated (para. 66). Further, he said that the determination of legal rights is better suited to a judicial body than to an administrative one (para. 68). Skweyiya concluded that a court interdict “is an appropriate less restrictive means of enforcing a ban on child pornography and protecting children from exposure to harmful or age-inappropriate materials, as well as preventing contravention of the law though an anticipatory mechanism” (para. 68).
Skweyiya concluded that “the central constitutional deficiency lies in the administrative and compulsory nature of the Act’s prior classification scheme, in circumstances where there are less restrictive alternatives for achieving important legislative purposes” (para. 72). Skweyiya confirmed the High Court’s finding that section 16(2) was unconstitutional, but ruled that its replacement of “contains” with “advocates or promotes” was insufficient: he ordered a complete excision of the provision (para. 75). He said that the purpose of the Act could still be achieved without section 16(2) as there were other provisions which addressed the dissemination of child pornography, the exposure of children to pornography and the ability of publishers to submit publications to the administrative bodies for their opinion on its suitability before publication (para. 77).
Skweyiya also concluded that it was irrational to exempt newspapers but not magazines from the classification regime (para. 81).
The Court ordered that the provision in section 16(2) that referred to sexual conduct be completely removed.
Van der Westhuizen J wrote a minority judgment which disagreed with the majority on the reasoning of the constitutionality of section 16(2) (para. 91).
Van der Westhuizen said that the central issue was the vagueness of the criteria listed in section 16(2), namely that publications containing sexual conduct which “violates or shows disrespect for the right to human dignity of any person, degrades a person, or constitutes incitement to cause harm” is subject to examination. He said that irrespective of whether the manner of restraint in the legislation was judicial (through a system of interdicts) or administrative (as the Act currently created), it would not be constitutional if the criteria list was vague and overbroad (para. 92). He said that “[t]he two problematic aspects of section 16(2) of the Act are the system of prior restraint embodied in it and the vagueness and overbreadth of the criteria in subsection (a)” (para. 99).
Van der Westhuizen discussed the history of censorship in South Africa and how “the apartheid state also imposed the narrow Calvinist and cultural notions of morality and good taste of the ruling minority on all” (para. 94). He said that in the apartheid-era censorship legislation “vague criteria like ‘indecent’, ‘obscene’, ‘offensive and ‘harmful to public morals’ were central to that Act” (para. 94).
Van der Westhuizen acknowledged that the problem with the prior restraint regime was that “the publication has to be submitted for classification before it is made available publicly, and before anyone has viewed or read it, or complained, or raised concerns about it” (para. 101). However, his central concern was that it may be the publisher’s inability to interpret the criteria in the same way as the criminal court in which he or she may later be charged, that results in a conviction and imprisonment. He emphasized that the vagueness and overbreadth of the submission criteria which included words and phrases such as “contains”, “disrespect for the right to dignity” and “degradation of a person” exacerbated the problem. Further, Van der Westhuizen said that it would be impossible to read-in any words to make the criteria less vague and that “substantial redrafting is required” (para. 108). He said that the High Court’s attempt to substitute “contains” with “advocates or promotes” was insufficient (para. 108).