Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
Closed Expands Expression
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The African Commission on Human and Peoples’ Rights (“ACmHPR” or “the Commission”) held that Zimbabwe violated Article 9(2) of the African Charter on Human and Peoples’ Rights (“the Charter”). The case concerned a decision of the Supreme Court of Zimbabwe that refrained from deciding on the merits of a constitutional challenge against a new law prohibiting mass media services from operating unless registered with the Media and Information Commission (MIC). Instead, the Supreme Court ruled that the applicant, the Associated Newspapers of Zimbabwe (ANZ), had defied the law and it would not decide on the merits until the applicant submitted itself to the law. Following the ruling of the Supreme Court, the police seized the equipment, closed the premises, and prevented further publications of the applicant’s newspaper The Daily News. The police also arrested and charged employees of the ANZ and, in other cases, threatened to do so. The Commission found that by using force instead of seeking a Court order to stop The Daily News from operating illegally, the State did not comply with the principle of proportionality and therefore violated Article 9.2 of the Charter. In addition, the Commission held that the State violated Articles 1, 14, and 15.
Pursuant to the communication jointly presented by the Associated Newspapers of Zimbabwe (PVT) Ltd (ANZ) and the Zimbabwe Lawyers for Human Rights, the case relates to the Access to Information and Protection of Privacy Act (AIPPA), enacted by the State of Zimbabwe in 2002. In particular, the Complainants submit that Section 66 of the AIPPA, read together with its Section 72, prohibits “mass media services” from operating unless they are registered with the Media and Information Commission (MIC).
The AZN, a Zimbabwean company that since 1999 published The Daily News, the largest independent newspaper in Zimbabwe, challenged the constitutionality of said registration requirement and refused to register until the question was decided by the Supreme Court. On 11 September 2003, the Supreme Court ruled that by refusing to register with the MIC, ANZ had blatantly defied the law and, as such, was operating outside the law. The Supreme Court added that “it would only hear the applicant on the merits once the applicant has submitted itself to the law” [para. 6]. In this regard, the Complainant submitted that “the Supreme Court declined to rule on whether or not the aforementioned provisions of the AIPPA were consistent with the Constitution but instead maintained that every law enacted in Zimbabwe remains valid and should be complied with until it is either repealed by an Act of Parliament or declared unconstitutional by the Supreme Court.” [para. 6]
On 12 September 2003, as a result of the Supreme Court’s decision, The Daily News was forcibly closed down, ANZ’s property seized, and several ANZ staff members arrested or threatened with arrest and criminal charges. Inevitably, ANZ applied to the MIC for registration on 15 September 2003, and on 18 September 2003, the High Court, pending the MIC’s decision on the application, granted ANZ authorization to publish its newspaper. Also, the High Court called for an end to police interference with ANZ’s business activities while ordering the return of all seized assets.
On 9 September 2003, the MIC rejected ANZ’s application citing the Supreme Court’s decision that ANZ was operating its media activities outside the law. ANZ appealed the MIC’s decision to the Administrative Court. On 24 October 2003, the Administrative Court unanimously quashed the MIC’s decision and held that the MIC was not impartial and was improperly constituted. Also, the Administrative Court “ordered the Board of the MIC to issue ANZ with a certificate of registration by 30 November 2003 failing which, ANZ would be deemed registered as from that date.” [para. 9]
Following The Daily News publication of 25 October 2003, the police returned to the newspaper offices, “stopped their work and prevented all further publication” [para. 10]. The Complainants contended that since then the authorities have not allowed them to reopen. The authorities have kept the seized equipment and have arrested and charged ANZ employees with criminal offences. The Complainants also submit that the continued closure of the newspaper “is causing irreparable harm to the freedom of expression and information and many associative rights as delineated in the African Charter”. They also claim that said closure is costing a loss in sales and advertising amounting to AZN 38 million Zimbabwean dollars every day.
On 12 November 2003, the communication was submitted to the African Commission who declared it admissible at its 38th Ordinary Session held in Banjul, The Cambia, in 2005.
In this case, the ACmHPR had to decide whether the State of Zimbabwe violated the rights of the victims under Articles 3, 7, 9, 14 and 15 of the African Charter when its Supreme Court refused to hear the NAZ’s case in application of the “clean hands doctrine”. In relation to freedom of expression, the Court had to determine whether the seizure of the premises and the closure of offices of the Complainant was proportional to their purported aim.
As an introduction to its considerations on the merits, the ACmHRP referred to the Black’s Law Dictionary (200) to define the clean hands doctrine as “an equitable principle which requires that a party cannot seek equitable relief or assert an equitable defense if that party has violated an equitable principle such as good faith. It bars relief to persons who are guilty of misconduct in the matter for which they seek relief. It is a positive defense that is available where the complaint by the claimant is equitable.” [para. 148] Once it defined said doctrine, the ACmHRP proceeded to address the alleged violations of the Charter.
With respect to freedom of expression, the Commission began its analysis by affirming that “even if the State was in the process of ensuring respect for the rule of law, it ought to have responded proportionally.” [para. 176] In that sense, the Commission stated that in order to determine whether an action is consistent with the principle of proportionality, the following criteria have to be addressed:
In light of the criteria mentioned above, the Commission recalled its decision on communication 242/2001 Interights et al. v. Mauritania where it held that the dissolution of a political party “was not proportionate to the nature of the breaches and offences committed by the political party” and it therefore violated Article 10.1. [para. 177]. In that sense, the Commission considered that in the instant case, “it is clear that the action of the State to stop the Complainants from publishing their newspapers, close their business premises and seize all their equipment cannot be supported by any genuine reasons” [para. 178]. In addition, the Commission affirmed that the rule of law not only imposes obligations upon the citizens but also on the State.
In conclusion, the Commission found that even if the State thought the Complainant to be operating illegally, by using force instead of seeking a Court order to stop their operations the Stated did not comply with the principle of proportionality and therefore violated Article 9.2 of the Charter. In addition, the Commission held that the State violated Articles 1, 14, and 15 of the Charter.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands expression by affirming that “even if the State was in the process of ensuring respect for the rule of law, it ought to have responded proportionally” [para. 176]. That is to say that with the aim of ensuring respect for the rule of law, States cannot infringe the rights protected by the Charter. In this decision, the Commission affirmed that the rule of law imposes obligations not only on the citizens but also upon the State. The ACmHPR rejects the clean hands doctrine as an excuse to allow disproportionate actions in contravention to the African Charter.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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