Access to Public Information, Privacy, Data Protection and Retention
Israel Courts’ Administration v. The Marker Newspaper
Closed Expands Expression
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The High Court of South Africa for the Cape of Good Hope Provincial Division granted a broadcasting company access to record legal proceedings and determined that courts, within their discretion, should adopt a flexible approach that favors justice and fairness when balancing the right to privacy with the right to freedom of expression. The South African Broadcasting Company (SABC) requested the right to televise the proceedings against Mark Thatcher, who was on trial for his involvement in an attempted coup in Equatorial Guinea. Citing international jurisprudence, the court reasoned that the SABC’s request was compatible with the Broadcasting Act 4 of 1999 and the right to freedom of expression. Although the court noted that these rights had to be balanced with the right to privacy, it decided that judges should be mindful of the values of justice, fairness, and reasonableness when determining if electronic media has the right to record, televise, and broadcast legal proceedings.
SABC is a national television network that requested the right to televise the proceedings against Mark Thatcher, who was on trial for his involvement in an attempted coup in Equatorial Guinea. SABC’s invoked this request under their right and obligation to fulfill its role as a news provider and under the constitutional right of members of the public to receive information, pursuant to both the Broadcasting Act 4 of 1999 and the Constitution of South Africa. They also invoked their constitutional right to freedom of expression as members of the press and their right to receive and convey information. SABC also suggested that televising the proceedings would guarantee openness and transparency.
Justice Van Zyl delivered the opinion of the High Court of South Africa for the Cape of Good Hope Provincial Division. The High Court granted permission for SABC to be present and to record the judicial proceedings with certain restrictions, including the provision that the recordings be broadcast on a delay in television news bulletins. Van Zyl did a comparative analysis of jurisprudence relating to the broadcasting of judicial proceedings in countries such as Canada, United States, Australia, the United Kingdom, New Zealand, and various European nations. Van Zyl determined that even though SABC’s desire to broadcast the proceedings was compatible with the Broadcasting Act 4 of 1999 and their right to freedom of expression under the Constitution, these rights had to be balanced with the right of privacy. The High Court determined that the grant was just and fair and within its inherent power to protect and regulate its own process.
Furthermore, Van Zyl asserted that judges should have discretion to allow or refuse the right of electronic media to record, televise, and broadcast legal proceedings. Also, if judges decide to grant permission, they have discretion to place restrictions or conditions. Van Zyl also established that the courts have to adopt a flexible approach when dealing with requests from electronic media to broadcast proceedings. Also, courts should assess each case separately and independently based on factual information. However, the decision to allow or refuse access should be done pursuant to the values of justice, fairness, and reasonableness.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court studied and considered judicial decisions of other countries that upheld the right to broadcast judicial proceedings. Even though the decision suggests that courts should have discretion when deciding to grant permission to broadcast proceedings, it has to be done in a flexible manner and in favor of justice and fairness. The High Court also contemplated that if a court decides to grant permission in favor of freedom of expression, it can still protect the right of privacy by establishing restrictions to the broadcasting of the proceedings.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The Court cited sections 3(1)(b); 6(3),(4).
Case significance refers to how influential the case is and how its significance changes over time.
The High Court struck a balance between the right to a fair trial and the principle of open justice. It permitted media to televise opening and closing arguments, any interlocutory applications, the judgment, and evidence of the experts and police witnesses for the state, as well as any lay witness who consented to be televised.
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