Ruling by Constitutional Court on broadcasting code
The judgment found that that this clause “would deny both broadcasters and their audiences the right to hear, form and freely express and disseminate their opinions and views on a wide range of subjects.” The judgment further found that “the wide ambit of this prohibition may also impinge on other rights, such as the exercise and enjoyment of the right to freedom of religion, belief and opinion guaranteed in section 15 of the Constitution”.
While acknowledging the influential role of radio and television in shaping public opinion, the court found that the very real need to protect dignity, equality, and the development of national unity could be adequately served by the enactment of a provision which is appropriately tailored and more narrowly focused.
The judgment refers to the fact that the IBA itself initiated a process of reviewing the existing code on the basis that it was overbroad and constitutionally objectionable. The judgment notes that three years after the IBA’s position paper was given to the Minister of Communications, “there is still no indication when the proposed legislation will be enacted, if at all”.
The judgment holds that for the interim, section 16(2)(c) of the Constitution should apply.
The BCCSA which administers the code on behalf of NAB members will be applying this in the interim. However, in the light of section 29 of the Films and Publications Act, the BCCSA has proposed to broadcasters and to ICASA that certain exemptions should also apply and has proposed a clause on unfair discrimination. The BCCSA’s proposed clause is as follows:
Advocating war, violence and hatred and unfair discrimination
(1) The electronic media shall not broadcast material which, judged within context
(a) amounts to propaganda for war;
(b) incites to imminent violence; or
(c) advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm; or
(d) advocates unfair discrimination against a person or a class of persons on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(2) Clause (1) (a)-(d) shall not apply to
(a) bona fide scientific, documentary, dramatic, artistic, literary or religion material, or any part thereof which, judged within context, is of such nature;
(b) material which amounts to a bona fide discussion argument or opinion on a matter pertaining to religion, belief or conscience; or
(c) material which amounts to a bona fide discussion, argument or opinion on a matter of public interest
(d) bona fide news”.