Exam (elaborations)
Exam (elaborations) LCR4803 - Media Law (Lcr4803)
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- University Of South Africa (Unisa)
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Media Law Q&A (2009 – 2014)In the case of R v Daya Morar the court reached a definition as to the legal
definition of a newspaper. Give the definition of a “newspaper” as decided by
the court. (5)
The court resorted to a definition in an American case, which reads as follows:
The principle distinguishing factor of a newspaper, in contemplation of the statute,
in our opinion, is that it be a publication appearing at regular, or almost regular
intervals, at short periods of time, as daily or weekly, usually in sheet form, and
containing news; political, social, moral, religious, and other subjects of a similar
nature local or foreign, intended for the information of the general reader. It is the
one quality of news which gives it its general interest, and secures for it a general
circulation among the people of different classes and callings whom the statute
seeks to reach by the requirement of notice by publication in a newspaper.
In R v Lewin the appeal court typified this definition as “apt and proper” but found
that a publication such as the one mentioned in R v Daya Morar could not be
regarded as a newspaper because it was not published at short intervals and
especially because it did not contain news of a general nature. The legislation’s
intention with the provision that advertisements should appear in a “newspaper”
was really to ensure that information be distributed as widely as possible amongst
the general public by means of the printed word so that in that way those members
of the public who could not be reached by means of the official mouthpiece, the
Gazette, could also be informed. The quality of the publication should therefore be
of such a nature that it enjoys a wide circulation.
Briefly discuss the prohibition on the communication of information in terms of
the Protection of Information Act. (5)
In terms of the Protection of Information Act, not only the publication, but also the
retaining and revelation of protected information is prohibited. This protection is
aimed mostly at military information. Information regarding secret codes or
passwords, documents, prohibited places, armaments, the defence of the Republic,
military matters, prevention or combating of terrorism, etc, obtained with the
purpose of disclosing it to any foreign state, or any agent, employee, inhabitant,
organisation, party, institution, body or movement in any foreign state, or to any
hostile organisation, is a punishable offence in terms of the Act, called espionage.
The Act also deals in general with the illegal communication of certain
secret/confidential/classified information: disclosure of such information to an
unauthorised person is an offence in terms of the Act, regardless of the subjective
motivation of the person disclosing it. The Act has been criticised severly by both
lawyers and academics because of its wide area or application and the vagueness
of certain phrases. Members of the media could obtain prohibited information
Q&A by @yash0505
,without knowing its true character! Not only is the publication of protected
information prohibited, but also the retaining, revelation, or use thereof.
Section 16 of the Constitution protects freedom of speech and is therefore of
vital importance to a student in Media Law. Discuss the content and ambit of
this section in detail. Indicate what is included in the right and what is
excluded. Don’t merely quote section 16 verbatim, but explain in detail the
meaning of the various terms used in the section. (10)
Section 16 determines as follows:
1 Everyone has the right to freedom of expression, which includes:
(a) Freedom of the press and media
(b) Freedom to receive or impart information or ideas
(c) Freedom to artistic creativity; and
(d) Academic freedom and freedom of scientific research
2 The right in subsection (1) does not extend to
(a) Propaganda for war
(b) Incitement of imminent violence; or
(c) Advocacy of hatred that is based on race, ethnicity, gender, or religion, and
that constitutes incitement to cause harm
Section 16 is not limited to freedom of speech, but provides for “expression”, which
spans a much wider field. It includes nonverbal and symbolic conduct as well.
Section 16(1)(b) clearly states that it is not only the right of the speaker that is
protected, but also the right of the recipient. It therefore seems as if journalists may
have the right to gather information in preparation for expressing themselves, and
also the right to use distribution channels to deliver the expression to others.
Although section 16(1) gives the impression that the right to freedom of expression
is almost limitless, section 16(2) immediately constricts the ambit of the right by
telling us that specific forms of expression are specifically excluded, and should
therefore not be protected.
X is a reporter for the newspaper “Paper News”, and you are a lawyer
specialising in Media Law. X is appointed as court reporter for the newspaper.
He is afraid that while reporting on sensational cases, he might perhaps
commit the crime of contempt of court. He therefore consults you in this
regard. Explain in detail to X what is meant by contempt of court. Do this by
firstly giving a comprehensive definition of the crime. Make sure that your
definition contains all the elements of the crime. Refer specifically to TWO
forms of contempt of which members of the media should be cautious when
doing court reporting. Explain also to X the meaning of all the terms you have
used in your definition. (10)
Q&A by @yash0505
, Contempt of court consists in
1 the unlawful and intentional violation of the dignity, repute, or authority of
(a) A judicial officer in his judicial capacity, or
(b) A judicial body
Or
2 the unlawful and intentional interference with the administration of justice in a
matter pending before a judicial body.
“Unlawfulness” refers to circumstances which are in conflict with the legal
convictions of society. Grounds of justification, which will exclude unlawfulness,
include: fair comment, vital public interest, application for recusal of a judicial
officer, privilege, and obviously unlawful command.
Intention is required except in the so-called “newspaper cases”. Dolus eventualis is
sufficient. Intention will be absent if the conduct is as a result of forgetfulness,
ignorance, absentmindedness, inadvertence, or excitement. The motive for which
the act was committed is irrelevant.
Regarding “judicial officer” or “judicial body”, the following applies. An attack on the
dignity or reputation of a judicial officer in their personal capacity does not
constitute contempt. The term “judicial body” refers to any type of court, high
courts as well as magistrates’ courts, regardless of whether the court exercises
criminal or civil jurisdiction.
The two forms of contempt of which members of the media should be cautious are:
sub iudice contempt, and scandalising the court.
Sub iudice contempt involves the publishing of information or comment on pending
judicial proceedings, which may have the tendency to prejudice the outcome of the
proceedings. Intention is not always required in terms of this form of contempt.
Negligence on the part of an editor of a newspaper is sufficient.
Scandalising the court is committed by the publication of allegations calculated to
bring judges, magistrates, or the administration of justice through the courts into
contempt, or unjustly to cast suspicion on the administration of justice. This is done
by 1) scurrilously abusing a judge, magistrate, or the judiciary as a whole; or 2)
imputing bias, partiality, or improper motives to a judge, magistrate, or the courts in
their administration of justice.
X, the owner of various shoe stores, wants to use comparative advertising to
promote the style and quality of their shoes. Explain to X what is the view of
the Advertising Standards Authority with regard to comparative advertising as
provided in Clause 7 of the Code of Conduct of the ASA. (8)
Q&A by @yash0505
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