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Court gags media from publishing details of alleged corruption and abuse at public broadcaster

(FXI/IFEX) - The following is an FXI media statement:

FXI outraged by gag on Mail & Guardian and others

After two attempts by the South African Broadcasting Corporation (SABC) to obtain court interdicts this week, the SABC's legal head Mafika Sihlali succeeded where his employer failed. Last night's gag order was granted against the Mail & Guardian (M&G), Media 24 "or any other person", which appears both vague and overbroad. The order by Pretoria High Court Judge Lettie Molopa is an indictment of the judiciary's commitment to press freedom and exemplifies how judicial distrust of media practices and anticipation of catastrophic results have combined to prevent coverage of a matter of great pubic concern. The M&G was prevented from publishing the details of an explosive report into alleged corruption, abuse of power and intimidation at the SABC, in a week during which, ironically, the SABC was widely condemned for having fought for a year to suppress the screening of the innocuous Mbeki documentary.

Even if the article was in some way potentially defamatory, the public interest in highlighting reports of corruption in the public broadcaster outweighs any argument in favour of an interdict, given that a post-publication defamation action is open to Sihlali. The court failed properly to take note of the extraordinary nature of a prior restraint on media publications, which is virtually indefensible given the compelling subject matter of the censored article.

That the M&G continues to publish such hard-hitting and controversial exposes is a testament to the courage and integrity of its investigative journalism. Since May 2005, six interdict applications have been launched in the Johannesburg High Court against the M&G. Though a number of applications were ultimately rejected, two interim interdicts were initially granted. There is a recent trend in South African courts to restrict the ambit of free media rights often based on negative assumptions about the media's trustworthiness. While not all the interdict applications have been successful, even unsuccessful but frequent interdict attempts hinder the efficient functioning of investigatory news organisations. The perception that the judiciary is responsive to interdict requests has led private actors and governmental agencies to increasingly rely on interdicts as part of a discernable trend towards pre-publication censorship. Constant interdict pressure and high litigation costs contribute to a sense that the more involved and time-consuming enterprise of investigative reporting about matters of great public importance is especially risky.

This latest case is strikingly similar to that of the much-criticised Oilgate gag order, in which the M&G was interdicted from publishing an article that was allegedly defamatory and privacy infringing. Similarly, the court did not have regard to the legal presumption against prior restraints on media publications. Over the last few years pre-publication censorship has emerged as probably the single biggest threat to investigative journalism and media freedom in South Africa. However, a number of recent judgements reflected growing judicial impatience with attempts to stem the free flow of news. In a recent case, an urgent interdict was brought by the DPP seeking to prevent e-TV from broadcasting a documentary relating to the events surrounding the Baby Jordan murder. The Supreme Court of Appeal revolutionised the law on prior restraints by establishing a test that requires a real risk of substantial harm to the dignity of the applicant before freedom of expression in restricted. Nor is it sufficient that there are no alternative means available. The critical third step is that the court must in engage in the exercise of considering whether the positive effects of the ban outweigh the negative effects of freedom of expression.

The tide started to turn even earlier when, in 2006, Johannesburg High Court Judge Zukiswa Tshiqi dismissed the SABC's application to have the M&G remove from its website the Sisulu Report on the blacklisting of analysts and commentators by the SABC. Judge Tshiqi said the content of the report was of extreme importance to the public as the SABC was a public broadcaster and should not be hidden or suppressed. Arguments by the SABC's lawyers that the report could cause harm to employees were not persuasive, she added. Amazingly, Judge Molopa's decision in the present case, on substantially similar facts, arrived at a diametrically opposed conclusion, to the ultimate detriment of press freedom.

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