Why the EFF ban on media organisations unconstitutionally infringes on the right to freedom of expression

Last week Economic Freedom Fighters (EFF) leader Julius Malema declared that online publication Daily Maverick, their investigative unit Scorpio, and independent investigative journalism unit amaBhungane would no longer be “allowed” to cover EFF events or briefings. The ban imposed by the EFF on various media entities may well be unconstitutional as it seems to infringe on the right to freedom of expression guaranteed in section 16 of the Bill of Rights.

Anyone who has ever had a run-in with a bank, a cell phone provider, or any other large private entity will be aware that such private entities wield enormous power and that they often use this power to infringe on the rights of individuals. Similarly, anyone who has ever been turned away from a nightclub because of their race or has been falsely told that a rental flat is “no longer available” (also because of race) will know that it is not only the state that infringes on the rights protected in the Bill of Rights.

The drafters of the South African Bill of Rights were aware that power also resides in the private sphere and can and are often abused by private actors. They therefore rejected the traditional approach towards the protection of human rights which exclusively focused on the abuse of power by the state. Instead they extended the direct and indirect application of the Bill of Rights to private parties. This means that in certain circumstances not only the state, but also private individuals, organisations and institutions have a constitutional obligation to respect, protect, promote and fulfil the rights contained in the Bill of Rights.

The direct application of the rights in the Bill of Rights to private parties is mandated by section 8(2) of the Bill of Rights, which states that:

A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

The wording makes clear that not all of the rights in the Bill of Rights will always bind all private institutions and persons. The nature of the right and the nature of the duty imposed by it may be such that a private institution or individual will not be in a position to limit the right in any way. For example, the right of detained and sentenced prisoners guaranteed in section 35(2) of the Bill of Rights will not normally place any obligations on private institutions or individuals as private individuals or institutions do not legally detain and imprison people – the state does.

But private individuals and institutions will have a duty to respect many other rights – including the right to freedom of expression guaranteed in section 16 of the Bill of Rights. In Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others the Constitutional Court dealt with the extent to which section 8(2) will impose duties on private parties to respect specific rights in the Bill of Rights.

In that case the Court held that the right to basic education guaranteed in section 29 of the Constitution prohibits private parties from infringing on the right to education, for example, by failing “to respect the existing protection of the right by taking measures that diminish that protection held that right”. The Court then proceeded to explain:

It needs to be stressed however that the purpose of section 8(2) of the Constitution is not to obstruct private autonomy or to impose on a private party the duties of the state in protecting the Bill of Rights. It is rather to require private parties not to interfere with or diminish the enjoyment of a right. Its application also depends on the intensity of the constitutional right in question, coupled with the potential invasion of that right which could be occasioned by persons other than the State or organs of State.

When one applies these principles to the right to freedom of expression, it becomes clear that the right will often impose obligations on private individuals, organisations and institutions not to do anything that would interfere with the enjoyment of this right. Section 16 states – in part – that everyone has the right to freedom of expression, which includes “freedom of the press and other media” and “freedom to receive or impart information or ideas”.

A private individual, organisation or institution may not have a positive obligation to promote the freedom of the media and may not have a constitutional duty to take steps to make it easier for individuals to receive or impart information, but does have a duty not to do anything that would “interfere with or diminish the enjoyment of a right” to freedom of expression.

Where private individuals, organisations or institutions take steps to prevent members of the media from doing their job, that private individual, organisation, or institution will be infringing on the right to freedom of expression because they would be interfering with or diminishing the enjoyment of the right.

For example, if EFF members again go on a rampage and thrash a clothing store in some or other shopping mall, and the owners of the mall prohibit members of the media from entering the mall to try and stop them from reporting on the thrashing of the store, this will constitute an infringement on the media’s right to freedom of expression.

Of course, in terms of section 8(3)(b) of the Bill of Rights courts are permitted to develop rules of the common law to limit the right that applies to private parties, provided that the limitation is in accordance with the limitation clause. In the example above, courts may develop common law rules to strike the correct balance between the right of owners to regulate access to their property and the right of the media to report on public events that occur on that property.

While the right will apply to a private party whenever that private party attempts to curtail the ability of the media to gather information and to report on a matter of public interest, the right would arguably apply more intensely and would have a more devastating impact if it is limited in ways that affect the democratic process. In such cases, the court would be more reluctant to impose limits on the infringed right in accordance with section 8(2)(b).

As the Constitutional Court has stated in S v Mamabolo (E TV, Business Day and the Freedom of Expression Institute Intervening) freedom of expression is important, among other reasons, because of its democracy-enhancing effects. In that case the court held that freedom of expression:

lies at the heart of a democracy. It is valuable for many reasons, including its instrumental functions as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.

The decision by EFF leader Julius Malema to ban certain media organisations from covering EFF events or briefings directly implicates the proper functioning of the democracy and it is highly unlikely that the court will sanction the limitation of the right.

The ban impacts negatively on the media, but – perhaps even more importantly – it impacts negatively on the ability of individuals to enjoy their right to freedom of expression. Where the media is hampered in doing their job this impacts on the ability of individuals in society to receive information, information that will enhance their ability to make informed and meaningful decisions about politics – including about their view of the EFF.

The fact that the EFF is a political party and therefore performs a public function intimately linked to our constitutional democracy places an even heavier burden on the party (as on any other political party) to respect the right to freedom of expression.

Unlike, say, the owners of a shopping mall, the EFF is a direct participant in democratically elected bodies and thus a primary political actor. This gives it immense power and influence not only over its supporters, but also in the democratic process. Its decision to ban some media entities from covering its events or briefings may therefore have a significant impact on the ability of these media entities to do their job.

What makes things worse is that the ban was imposed to punish media organisations for reporting on alleged corruption and theft committed by EFF leaders. In other words, the EFF is trying to punish media outlets for doing their job. While it may not succeed, the EFF is attempting to get the banned media entities to stop investigating the alleged corruption and theft of its leaders. It is also sending a message to other media outlets to warn it to refrain from investigating and reporting on wrongdoing by EFF leaders. It is an act of intimidation aimed at avoiding any accountability and scrutiny by the media.

While this intimidation will obviously impact negatively on the affected media organisations, it is important to realise that they are not the only ones whose right to freedom of expression is being infringed. The EFF ban is ultimately aimed at ensuring that ordinary voters are deprived of at least some relevant information that would allow them to make an informed and reasoned assessment of whether the EFF is a party to be supported or rejected.

To some extent then, the “real” victims of this ban are voters. The EFF is trying to prevent voters from accessing negative information about the party. If the party succeeds it will rob voters of the ability to make an informed and reasoned decision about whether to support or reject the EFF. The ban is therefore at its heart anti-democratic.

The banned media outlets therefore have an excellent chance of persuading a court that the EFF decision unconstitutionally infringes both on the freedom of the media and on the freedom of ordinary individuals to receive information that will help them to make proper political choices.

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