REVISION

Module purpose The purpose of this module is to provide students with the fundamental knowledge of legislation relating to the law of communication and media

Module outcomes 1 Analyse constitutional and other legal frameworks in South

African law.

2 Evaluate the relevance of the media legal history for the South African context

3 Demonstrate knowledge and understanding of the legal risks and implications of violating specific media laws

4 Analyse media situations to determine compliance with regulatory frameworks and ethical codes

What you should understand in

each Learning Unit 1 Media Law as a subject area;

The South African Legal system The various types of case law

2 Concepts around Media Freedom and Ethics Constitutional Media Freedom Case Laws on Freedom of expression

3 Understand the legal process Understanding contempt in court Statutory prohibitions

4 Definition of defamation Elements of defamation Understanding case studies related to defamation

5 Understanding what the right to privacy means Distinguishing between the two guarantees provided in the constitution Understanding the various forms of invasion of privacy Understanding the constitutional right to privacy The relationship between media freedom and privacy

6 The basic tenet of formalistic ethics

Protection of confidential sources The media as a market place of ideas Understand the Privilege and criminal Procedure Act 51 of 1977

7 Understanding intellectual property law Defining copyright law Various works protected copyright

Exam information Weighting: 55%

Duration:

2 hours

Total marks:

120

Open/ closed book:

Closed book

Resources required:

Case studies will be provided if necessary

Learning units covered:

All

LEARNING UNIT 1:

INTRODUCTION TO

THE CONCEPT OF

LAW

Understand the term “Media Law” and why it is important for journalists, PR practitioners and communication specialists to study Media Law

Law regulates every aspect of our lives so it is important that persons

working in the field of media and communication understand the legal

framework in order to:

Avoid pitfalls

Make wise and informed decisions in performing tasks

Complete everyday work which pays heed to privacy, defamation and

access to information laws

Add value to and advance the democratic principle of freedom of

expression

Inform and educate the public in a responsible and legal manner

Develop critical and independent thinking on subjects of ethics and

morality

Cultivate thinking that is systematic, ordered and logical

Understand the concept of law “the law is a body of rules which govern human conduct, is recognised by people and enforced by the State” The law is a set of rules which we should obey It regulates behaviour of legal subjects: persons (natural and juridical) [A legal subject is a human being (natural person) or a legal person (legal entity) to whom the law applies and for whose benefit the law exists] It is enforced by the State “legal right” = an interest conferred and protected by the law, entitling one person to claim that another person give something, perform an act or refrain from performing an act The law regulates society and is influenced by natural, social and moral rules of conduct so any changes in society should be reflected by the law BUT the law and morality are not the same thing

Identify and explain various

sources of law in the South African

legal system

(sources of law = where law can be found)

Authoritative – binds the courts

Persuasive

1. Legislation

2. Customary law

3. Case law

4. Old authorities

5. Foreign law

6. Textbooks

7. Law journals

Develop knowledge and

understanding about the

structure of the South

African court system The function of the courts is to apply the law, not make the law…

Judicial decisions (judgements) can influence legal principles

SA courts are divided into 2 groups:

1. Superior Courts

The Constitutional Court

The Supreme Court of Appeal

Provincial and local divisions of the High Court

2. Lower Courts

Magistrates’ Courts

Small Claims Courts

Specialist Courts

Community Courts: Courts of Tribal Chiefs and Headmen

[lower courts are bound to the decisions of

superior courts]

KNOW JURSIDICTION OF EACH COURT, WHO IS BOUND

TO WHOM AND THE DOCTRINE OF STARE DECISI!!

[The doctrine of Stare decisis means that the

judiciary is bound to follow established

decisions which set precedents

This means that judicial officers (judges and

magistrates) have to follow legal rulings given

by courts of superior standing in previous

judicial decisions]

Understand and discuss the difference

between civil and criminal case

Criminal cases Civil cases takes place when a person commits

a crime and thus damages the

interests of the community

1 the state does not play any role in

bringing any of the parties before

the court.

The state acts as the champion of

the general public and has to

prosecute criminals and obtain

their punishment.

2 It is the task of the aggrieved

party (plaintiff) to bring his/ her

opponent (defendant) before such

court.

(State/ prosecution) “beyond a

reasonable doubt”

3 (plaintiff) “on a balance of

probability” (if the probabilities

favour the plaintiff’s version of

events then judgment will be given

in his/ her favour)

LEARNING UNIT 2:

MEDIA FREEDOM

AND ETHICS

Fundamental human rights are entrenched/ contained in the Bill of Rights (Chp2 of the Constitution) The BoR starts as follows: “The Bill of Rights is the cornerstone of Democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.”

Discuss what kind of impact the right to freedom of expression has on the media

Freedom of expression (S16 of the Constitution) is one of

the most important rights regarding the media because open

discussion and the free exchange of ideas are essential in the

determination of the true stet of affairs (Classical truth

theory), citizens should be freely informed about politics in

order to participate in the democratic process (Participation

in democracy theory), the free flow of information helps to

create social stability (Social stability theory) and freedom of

expression is vital in promoting self- realisation and personal

growth (Individualising theory).

Censorship means that the right to freedom of expression is limited/

suppressed

“to censor” means evaluate, criticise, assess, prohibit and suppress

Censorship occurs to protect

3 theories to back this:

1. Public good vs individual liberty

2. The right to know vs the right to privacy

3. Freedom of expression vs hate speech

YOU NEED TO KNOW THESE THEORIES AND WHAT EACH OF THEM MEANS

’

-

Islamic Unity Convention v The Independent Broadcasting Authority and Others

There are still laws under our democracy which entail a form of censorship The first is the Promotion of Access to Information Act (PAIA) Although this Act aims at giving effect to the constitutional right of access to information (so you are entitled to get info which is held by another person) it is limited in that: 1) It does not apply to Cabinet or Members of Parliament 2) Public and private bodies don’t have to disclose info about a third party, trade secrets, info which would threaten police investigations or national security or economic interests, information about policy discussions or if it is frivolous or unreasonable to request such information.

The second Act is the Protection of Disclosures Act

Whistle –blower act The Act protects people who come across sensitive confidential info Whistle- blowers are protected when they disclose info to lawyers to get legal advice They are only protected when they disclose info to the media if: #The information is substantially true; #They receive no reward; #They believe they could not tell their employer because they would be harmed or prejudiced or the employer would destroy the evidence; #They have tried making the disclosure to others but nothing had been done about it; and #The disclosure was about something very important

Provide a case study which illustrates

that even though the PAIA has been

passed access to information can be

denied

*Frere Hospital Infant Mortality Rate debacle in 2007 *SA Nuclear Programme issue in 2005

KNOW IN BRIEF THESE ETHICAL THEORIES: Virtue Deontological ethics Utility Rights Love

LEARNING UNIT 3:

THE LEGAL

PROCESS

Understand the legal process

after a crime has been

committed

After a crime has been committed there is:

1. Reporting of the crime

2.An investigation into the report

3.A case is opened

4.A suspect is then charged with the crime

5.A trial takes place and

6.A judgement is made

In terms of the CRIMINAL PROCEDURE ACT, in certain

instances (rape, indecent assault or blackmail) the victim

should not be named

The accused may only be named AFTRE THEY PLEA and

not before (during the investigation phase)

This could result in defamation

Define and explain what

contempt of court means

Contempt of court is the unlawful and intentional violation of the dignity, repute or authority of a judicial body or interference in the administration of justice in a matter pending before such a body

Discuss the various statutory prohibitions on reporting certain information and evidence presented in court

= sub judice rule Meaning it is a rule related to the coverage of a case while it is still on-going This rule tries to ensure that the outcome of a case is not influenced by outside factors (such as what the media is saying) This rule is broken when: A newspaper pronounces the accused’s guilt before the court hands down a conviction The credibility of a witness is attacked Evidence is published before it is presented in court Facts that the judge should not be aware of are published ALSO Cases are held in public but may be held in camera (CPA S153 and 154)

LEARNING UNIT 4:

DEFAMATION

Defamation is an attack on a person's good reputation

Reputation is very important as every person has a right to a good name and to be regarded in a

good light

Defamation could be defined as “the publication of words or behaviour concerning a person that

tends to injure (harm) the good name of that person, with the intention of injuring that person

and without grounds of justification”

And defamation by the mass media is “the unlawful publication of defamatory matter referring

to the plaintiff, which causes his or her reputation to be impaired”

So... defamation is ANY ACT which damages a person's name or status as regarded by the community

The usual delictual elements must be proven: 1. A wilful act/ conduct 2. Unlawfulness (in the absence of grounds of justification) 3. Fault (intention or negligence) 4. Damage or injury to pensions 5. Causal connection AND then the following must also be proven to be successful in a defamation suit: 1. Publication 2. Of unlawful 3. Defamatory words or defamatory actions 4. About himself 5. Which caused harm

Justify the causal connection between the act (conduct) and damage

There has to be a link between the act and the damage in order to

award compensation

compensation is only awarded where a person’s esteem has been damaged

DUE TO the defamatory remark

The remark must also refer to a specific person to qualify as

defamatory and causing a right to compensation

NOTE!!!

> Groups – a plaintiff will have to prove the remark was specifically

levelled at them

> Deceased person – cannot be defamed

> Juristic person – law is uncertain but should not qualify as

defamation since it is a separate entity from its members

> Government – unsure position in SA

Describe defences to a

defamation action

1. truth and public interest When the comment is/was true and it is to the benefit of the public to be informed the defendant cannot be held liable.

2. fair comment Based on the ideal that everyone is entitled to comment on matters of public interest Must however meet the following 4 requirements: 1. the statement must be a comment or an opinion concerning facts 2. the statement must be fair (not biased or exaggerated) 3. the facts which the statements relates to must be true and correct 4. the statement is made on a matter of public interest

3. privilege There are 2 forms of privilege: absolute privileged where the defendant cannot be held liable at all and qualified priviledge where the defendant will

not be liable if certain conditions exist (3 of them…know them) 4. reasonable publication This concept is not yet properly defined in law BUT there are some examples of what this might entail Reporters are obliged to keep good records of their information and to investigate a story properly before publishing it

Explain the various remedies that can be instituted if defamation is about to occur or has already occurred

1. Interdict – (prohibitory) restrains publication or further publication The applicant must show that if publication is not stopped, he will suffer irreparable injury which cannot be compensated Read the examples on page 78 of the MM 2. Damages – payment of an amount of money to compensate the plaintiffs hurt feelings or to mend the hurt to the plaintiffs dignity and reputation 3. Apology – not a defence BUT it could reduce the amount of damages (court will consider the speed, degree of prominence and sincerity of the apology)

Use case studies to illustrate the principle of investigating facts effectively as set out in the Bogoshi judgement

A defamation suit cannot succeed if a newspaper can prove it was

acting in good faith and that it and its journalists had taken

all reasonable steps possible to verify the accuracy of the

story

This puts more responsibility on news organisations and

journalists to investigate thoroughly and keep good records and

notes

Discuss defamation

as a crime

LEARNING UNIT 5:

INVASION OF

PRIVACY

Justify the concept of Invasion

of Privacy

Privacy is protected and is constitutionally entrenched (S14) because it is related to the sphere of intimacy and autonomy of a person which is connected to human dignity. Privacy is a person’s right to live their life in seclusion without being exposed to unpermitted publicity. Invasion of privacy is thus “any intentional or unlawful interfering with another person’s right to seclusion in his or her private life”

Describe the elements of

an act in the case of

Invasion of Privacy

The “act” is an infringement of the right to privacy

Could be done in 2 ways:

1. intrusion – obtaining information eg. hacking/ opening

someone else’s mail

2. disclosure – spreading information eg. telling someone

of something private you know about someone else

Grounds of justification are defences to a claim of invasion 1) Consent Explicit or implicit! Requirements: It must have been given voluntarily (without force); The invasion of privacy must take the form that was agreed to; Consent may not be against society’s opinion of what is right and proper 2) Privilege Absolute or qualified Absolute – an allegation made during a parliamentary debate Qualified – where a person has a legal, moral or social duty to speak out (where you release info regarding an ex employee to a future employer) 3) Public benefit Most important defence to a claim of invasion of privacy People in the public eye cannot expect the same level of privacy as any other civilian Must be balanced however!

There must be fault in order to prove invasion of

privacy

The relevant form for invasion is intention

Tested subjectively – did a certain person intend to

invade the privacy of another?

Eg. a person accidentally walking into the wrong hotel

room (i.e. he or she thinks that it is his or her

room) does not intentionally invade another’s privacy

Provide a case study, which illustrates

how the media invade people’s privacy

LEARNING UNIT 6:

DISCLOSURE OF

INFORMATION

Understand the concept of Disclosure of Information

Journalists must protect their confidential sources of info

BUT sometimes they have info which is necessary in the

prosecution of a criminal case

They may then be subpoenaed to appear in court to testify

or to hand over any evidence which they have in their

possession

A balancing process is required in these instances:

oFreedom of expression

oThe right to a fair trial

The CPA relates to information which must

be “given up” or made public in order to

criminally prosecute or investigate while

journalistic ethics deal with keeping

information confidential and private

Relate the Act to both the duty to disclose or not to disclose sources of information

S189 of the CPA

– provides for the court to enquire into circumstances where a person refuses to give evidence or

appear as a witness

- unless the person has a just excuse for their refusal, the court may sentence that person to

imprisonment

- the only recognised excuse is known as the privilege against self-incrimination

- should the witness refuse they will be imprisoned for a period of time UNLESS the judge or

magistrate are of the opinion that the info is not necessary for the administration of justice

[subsection (4)]

S205(1) of the CPA

– firstly, a person with info regarding a crime may be ordered/ subpoenaed to appear in court to

be questioned

- secondly, indemnity: if the person in possession of the info provides the info to the director of

public prosecution satisfactorily, he or she does not have to appear in court AND the hearing almost

always takes place in camera

Provide case studies, which show how journalists can be subpoenaed to give information

Benny Gool and the PAGAD photos

Explain the implications of the anti-terror

bill and what it states with regard to

disclosing sources

It is connected to the Secrecy Bill as it compels journos to disclose their sources ALSO citizens are obligated to report any terrorist offence “as soon as reasonably possible” Journos could thus be forced to disclose all sources and to hand over all material to the State which then compromises freedom and independence of the media

LEARNING UNIT 7:

INTELLECTUAL

PROPERTY LAW

AND THE MEDIA

Define the term “copyright”

“the right of ownership which a person

has over something they have created”

Discuss categories of works protected under copyright

1. Literary works 2. Artistic works 3. Musical works 4. Sound recordings 5. Cinematographic films 6. Sound and television broadcasts 7. Programme-carrying signals 8. Published editions 9. Computer programs In terms of the Copyright Act

Work is only protected when it meets certain

requirements

When you meet the requirements of CR you are

protected and do not need to take further steps

like registration for example (you do with certain

other forms of protection such as patenting)

Material embodiment (permanence)

Originality

Propriety (decency)

Publication/ qualified person

Motivate and understand ownership of copyright

Why? Because ownership of CR could be very valuable

It begins the moment the work fulfils all the requirements

Remember there is a separation between ownership to the CR and

ownership of the material form of the work

Ownership may of course be transferred

Identify the duration

of copyright

This right is only protected temporarily and when the protection expires the work falls into the public domain and can never again be owned meaning it may be copied freely Usually protection is granted for 50 years (actually in SA it is life of the author + 50 years)

Identify and discuss

infringement of copyright

Any unauthorised copying or commercial exploitation of a work of which a

person does not have ownership

There must be actual copying

If a work is transformed in a way that the original/ substantial features

are recognisable it is an adaption or reproduction (this is actual copying)

For copying to be an infringement it should be the copying of a substantial

part of the work and not just a detail or tiny section thereof

1. Research or private study 2. Criticisms or review of the work or of another work 3. For reporting 4. Judicial proceedings 5. Quotation 6. Teaching 7. Lectures, addresses and similar works 8. Articles on current economic, political or religious topics 9. Demonstration of radio and television receivers by dealers 10.Official text and news (legislation, political; speeches, speeches

during legal proceedings) 11.Artistic works in the backgrounds of films 12.Computer programs may be copied in certain instances In terms of the Copyright Act

CR is limited by country borders

Only protected in another country when an agreement

exists between 2 countries

Discuss copyright protection on the

Internet

The status of CR protection on the internet is

largely uncertain and the law is in flux

Best thing to do is to compose some form of a

contract - indemnity screen

Define the term “plagiarism” and discuss

instances of it happening in South

African media

“

”

I am leaving the

answers to the

revision questions of

each Learning Unit in

the library with Lerato.

You are welcome to go

make photocopies of it

there.