The Boundaries of Freedom of the Press in South African Law

Christiena Maria van der Bank
(Vaal University of Technology, South Africa)

Abstract: Our entire social system is pervaded with a myriad of issues relating to freedom of expression. A free responsible press is one of society’s greatest assets. Courts must now ensure that common law is not locked within the limitations of the past and they must re-consider common-law rules within the new context so as to render them congruent with the fundamental values and principles. Strict liability of the press is now rejected as unconstitutional since it mars the free flow of information—a democratic principle. The press should, however not be placed in a privileged or superior position to that of the individual on the basis that the press constitutes an essential bastion of free expression in a democracy. The media defendant had to prove a defense excluding unlawfulness on a preponderance of probabilities rather than a mere evidential burden. The media defendant is a defamation action is often in the best position to know whether reasonable steps were taken to verify the information published and so to establish that its publication was reasonable. In a system of democracy dedicated to openness and accountability, as ours is the especially important role of the media, both publicly and privately owned, must be recognized. Freedom of expression is therefore a path of the very definition of self-government: the process of free discussion is required no matter whether the process leads to the truth or not.

Keywords: freedom of expression; unlawfulness; reasonable; democracy and values

JEL code: K10