Is porn industry regulation a freedom of expression issue?

Fiona Snyckers wrote an interesting post for Thought Leader titled "Regulation of the porn industry is not a free speech issue". Her basic premise is that the porn, or adult entertainment, industry is primarily a commercial endeavour and content the content the industry produces is not protected as "free speech". Leaving aside whether its desirable to have this sort of adult content available on TV and, by extension, the Web and other media (that is a different debate which I'm not going to explore in this post), Snyckers tries to make an interesting point, albeit on a flawed premise.

In most western-style democracies, pornography does not enjoy the protection of the freedom of speech laws. This is because it is classified as a form of commercial expression, rather than artistic or ideological expression. Have you never wondered, for example, why the advertising industry is subject to such stringent laws? It even has its own control board — the Advertising Standards Authority of South Africa. Advertisers are not permitted to do a whole bunch of things, including explicitly compare their own brand with someone else’s, offend the public’s religious or moral sensibilities, or post billboards of naked people. The list of things they’re not allowed to do is a very long one indeed.

So how come the government is allowed to restrict the advertisers’ freedom of expression in this way? And why does nobody ever protest about it?

It all has to do with the fact that advertising is regarded as a form of commercial, rather than artistic expression. The advertisers are not trying to bare their artistic souls to us — they are trying to sell products. And because selling products is an entirely commercial enterprise, laws have evolved to regulate it.

Snyckers' first assumption is that commercial expression is not protected under our Bill of Rights. This is not necessarily correct. The right to freedom of expression states the following:

16 Freedom of expression

(1) Everyone has the right to freedom of expression, which includes-

(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of 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.

The right does not limit its application to commercial forms of expression. The Bill of Rights applies to both natural persons (humans) as well as juristic persons (such as companies) "taking into account the nature of the right and the nature of any duty imposed by the right". It is entirely plausible that commercial expression could be protected under this right and we have seen this in cases like Print Media South Africa and Another v Minister of Home Affairs and Another which dealt with an amendment to the Films and Publications Act which established criteria for ratings for sexual and other content. This case centred on whether the amendment violated the right to freedom of expression in the context of adult content (Also take a look at Pierre De Vos' post titled "On freedom of expression and censorship of magazines" in which he considered this case):

In essence, the contention of the applicants is that the challenged provisions are unconstitutional mainly because the said provisions are a limitation of the entrenched constitutional right to freedom of expression.

Another flawed assumption in Snyckers' post is that the fact that commercial expression, such as advertising, is regulated is confirmation that commercial expression is not protected. This is not the case at all. The rights in the Bill of Rights are not absolute. The right to freedom of expression is, like the other rights, subject to limitation on certain grounds. This particular right has a number of limitations detailed in section 16 itself (sub-section 2) and is also subject to a general limitations clause which allows for national legislation, for example, to limit a right. Rights are also limited by Courts when they compete with other rights. In defamation cases, for example, Courts often weigh up one party's right to freedom of expression against another party's rights to dignity and privacy and attempt to strike a balance between these competing rights.

When it comes to the porn industry, the test a Court applies probably won't be whether the enterprise is a commercial one and, therefore undeserving of protection under the right to freedom of expression, but rather whether the enterprise, in exercising its right to freedom of expression, infringes on other people's rights and whether the enterprise's ability to exercise its right to freedom of expression should be limited?

Regulators: Hands off the social Web

Two recent events have sparked debates about whether the social Web should be censored: the first is the recent civil unrest in London and the second is a recent report in the Sunday Times about a racist calling himself "Eugene Terrorblanche" publishing a deeply disturbing photo on Facebook (it turns out this is an old story but relevant nonetheless).

When faced with these sorts of social network abuses, its sometimes tempting to ask whether these social services are somehow inherently bad for allowing themselves to be abused like this. The short answer is "no" and that these services typically take action against the offending material or account where the use falls foul of their terms of service or is otherwise illegal. Facebook's Statement of Rights and Responsibilities contain the following use restrictions:

Safety

We do our best to keep Facebook safe, but we cannot guarantee it. We need your help to do that, which includes the following commitments:

1. You will not send or otherwise post unauthorized commercial communications (such as spam) on Facebook.
2. You will not collect users' content or information, or otherwise access Facebook, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission.
3. You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on Facebook.
4. You will not upload viruses or other malicious code.
5. You will not solicit login information or access an account belonging to someone else.
6. You will not bully, intimidate, or harass any user.
7. You will not post content that: is hateful, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
8. You will not develop or operate a third-party application containing alcohol-related or other mature content (including advertisements) without appropriate age-based restrictions.
9. You will follow our Promotions Guidelines and all applicable laws if you publicize or offer any contest, giveaway, or sweepstakes (“promotion”) on Facebook.
10. You will not use Facebook to do anything unlawful, misleading, malicious, or discriminatory.
11. You will not do anything that could disable, overburden, or impair the proper working of Facebook, such as a denial of service attack.
12. You will not facilitate or encourage any violations of this Statement.
    

Twitter's Rules contain the following restrictions:

Content Boundaries and Use of Twitter

In order to provide the Twitter service and the ability to communicate and stay connected with others, there are some limitations on the type of content that can be published with Twitter. These limitations comply with legal requirements and make Twitter a better experience for all. We may need to change these rules from time to time and reserve the right to do so. Please check back here to see the latest.

• Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others
• Trademark: We reserve the right to reclaim user names on behalf of businesses or individuals that hold legal claim or trademark on those user names. Accounts using business names and/or logos to mislead others will be permanently suspended.
• Privacy: You may not publish or post other people's private and confidential information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission.
• Violence and Threats: You may not publish or post direct, specific threats of violence against others.
• Copyright: We will respond to clear and complete notices of alleged copyright infringement. Our copyright procedures are set forth in the Terms of Service.
• Unlawful Use: You may not use our service for any unlawful purposes or in furtherance of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content.
• Misuse of Twitter Badges: You may not use a Verified Account badge or Promoted Products badge unless it is provided by Twitter. Accounts using these badges as part of profile pictures, background images, or in a way that falsely implies affiliation with Twitter will be suspended.

Google+'s content policy contains similar restrictions. The point is that these social services contain mechanisms in their terms of service which prohibit users from using their services of these sorts of uses and to remove the content in question or delete the user's profile where these rules are infringed.

Neutral tools and misinformed assumptions

Notwithstanding these infrastructural barriers to improper uses of these services, governments and regulatory bodies have raised the possibility of regulation of the social Web as a response to what they may regard as offensive or inappropriate use of these social services. In the United Kingdom, the British government mooted the possibility of restricting access to social services like Twitter, Facebook and Blackberry's messaging services which were apparently used by rioters to co-ordinate their activities. The challenge with Blackberry's services, in particular, is they are purportedly encrypted and that has frustrated numerous governments seeking to spy on their Blackberry-using citizens. The desire to censor or restrict these services because they may have been used by criminal elements in the United Kingdom is short-sighted and doesn't take into account the beneficial uses of these services.

The Guardian published results of a study of Twitter usage during the London riots recently. Not surprisingly, the study's findings revealed that the perception of these social services primarily as tools for criminals was overstated.

Analysis of more than 2.5m Twitter messages relating to the riots in England has cast doubt on the rationale behind government proposals to ban people from social networks or shut down their websites in times of civil unrest.

A preliminary study of a database of riot-related tweets, compiled by the Guardian, appears to show Twitter was mainly used to react to riots and looting.

Timing trends drawn from the data question the assumption that Twitter played a widespread role in inciting the violence in advance, an accusation also levelled at the rival social networks Facebook and BlackBerry Messenger.

The study revealed that Twitter, for example, was used to organize responses to the rioting and to co-ordinate a clean-up. In other words, the victims of the violence used Twitter to organize themselves and a response to the same criminal activity which similarly relied on these services to propagate. Restricting access to these services may stifle criminal activity but it may also stifle beneficial uses of the services.

Locally, the Sunday Times article sparked various debates about the disturbing photo of the apparent right winger. One of the debates focused on how the photo and the story first broke in 2008 and was hardly the news the Sunday Times portrayed it as. The Sunday Times came under criticism for making much of an old story and yet these critics have glossed over two serious issues: the photo was still available on Facebook 3 years after it was first noticed by the media and the photo still depicts a very disturbing image of a white man enthusiastically posing over the apparent body of a black boy with his rifle as if the white man hunted him. Irrespective of whether the photo is real or a fabrication, the message the photograph should most certainly concern us for various reasons. It touches on old racial tensions which are very much alive and well 17 years after South Africa adopted a broad democracy based on fundamental rights such as equality and dignity.

The photograph also suggests that these same racial tensions are not just the domain of an older generation but have been handed down to a younger generation on both sides of the growing racial divide. We see it in this photograph and we see it in Julius Malema's rhetoric. These are some of the real issues we should be concerned about, not which publication published the story first or whether the photograph may have been fabricated (if the photograph is an accurate portrayal of what it appears to portray, it is an even more graphic illustration of these issues).

Regulation and censorship

Another debate which this story's renewed publicity has sparked is a similar one to the debate underway in the United Kingdom: should the social Web be regulated, censored, to address improper uses of these services? The chairperson of the South African Human Rights Commission, Lawrence Mushwana, recently released a statement suggesting that the social Web should be regulated. According to the Citizen, reporting on this –

Mushwana said even though there was no doubt that social networking sites played an important role in promoting the right of freedom of expression it was clear that practical ways should be found to ensure they were used appropriately.

One of the issues raised was individuals' ability to hide behind pseudonyms and relatively untraceable profiles and post offensive material or even conduct criminal activity using these social services (social services like Google+ and Facebook take a firm stand against pseudonyms and this has proven to be controversial). The SAHRC has apparently had to close numerous files because people suspected of human rights abuses have been unable to locate and hold accountable. One stark example of this is the young man depicted in the photograph the Sunday Times published. While that is certainly a concern, it is also important to point out that the call for assistance in identifying this individual was made, in part, using the social Web. The link to the article was published on the Sunday Times website and was disseminated using Twitter and Facebook links alongside the article almost 800 times on Twitter and over 3000 times as I write this. These numbers don't take into account how often the story's link was shared on Twitter and Facebook directly or even on other social services ranging from email to the relative newcomer, Google Plus.

Mushwana's chilling call for regulation ignores the fact that the law in South Africa already prohibits incitements to violence and hate speech, to name two features of these two stories. The right to freedom of expression specifically excludes its application to incitement to violence and hate speech. Criminal activities co-ordinated through social services, the phone or word of mouth are equally illegal and punishable. I also believe that just as with content piracy, criminals intent on abusing social services to further their criminal activities will find other ways to do this if current channels are simply cut off. What happens then is that the very people who would otherwise be empowered by these social services to resist our society's harmful elements will be deprived of an accessible, powerful and effective set of tools. What governments and regulators should rather do is find better ways to make use of these services to harness crowd wisdom to monitor and combat the social Web's abusers. One example of where British police have started doing this is publishing surveillance photos of the looters to Flickr and asking citizens to identify them so the police could arrest the suspected looters.

Legally speaking, there may be compelling grounds to argue that depriving citizens of the use of these social services may unreasonably infringe citizens' rights to dignity, freedom of association, not to mention the right to freedom of expression. We have a fairly robust recognition for the value of these rights in our constitutional jurisprudence and limiting the scope of our rights is not a small matter. The Constitutional Court in the matter of S v Mamabolo (E TV and Others Intervening) stated the following:

Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression — the free and open exchange of ideas — is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore we should be particularly astute to outlaw any form of thought control, however respectably dressed.

In policy terms, the question how far this sort of regulation goes also arises. Censoring criminals using social services is a relatively easy choice but what happens when the people using these services are legitimately protesting an unpopular government or policies designed to erode human rights. We have seen several examples of the former in the Middle East and north Africa this year and examples of the latter here in South Africa when the government introduced legislation which would substantially erode freedom of the press, for instance.

The law is developed enough to deal with these sorts of issues even as the tools used to commit these misdeeds become more widespread and versatile. The social Web introduced us to a new paradigm but that paradigm doesn't just apply to marketing initiatives, the social Web amplifies social conventions and empowers previously disadvantaged people who lacked the means to express their voices. The social Web is not inherently good or bad and regulatory frameworks exist alongside contractual frameworks established by these social services to recognise and combat abuses like hate speech and incitements to violence. What governments and regulators are forced to contend with is a fundamental shift of the power dynamics between them and citizens but those shifts can have profoundly beneficial implications for the same citizens those regulators seek to protect. Where citizens find themselves subject to tyranny, they have resorted to these tools to combat that tyranny. As the old adage goes:

Guns don't kill people, people kill people.

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Photo credits:

• Riots in Greece (Dec 2008) Tear Gas by agelakis, licensed CC BY-NC-SA 2.0
• Riot Squad by daveblume, licensed CC BY-NC-ND 2.0

Privacy, freedom of expression and Julius Malema's failed City Press gag attempt

When Julius Malema learned that the City Press was about to publish details of his wealth and resources, he launched an urgent application to stop the publication from going to press. Judge Colin Lamont ruled against Malema in an judgment which seems reminiscent of the judgment against the former and late Health Minister, Judge Lamont ruled, at least in part, that being a public figure exposes you to greater scrutiny and a reduced privacy expectation. According to City Press:

Lamont – coincidentally the same judge who heard the hate speech case brought against Malema by AfriForum – also shattered the youth leader’s belief that he is a private citizen entitled to the same level of privacy “normal” South Africans enjoy.

“At present, there is a discussion in the press concerning whether or not his income justifies his expenses,” Lamont said.

“The question of Mr Malema’s income is topical and relevant. The public is entitled to have full disclosure by persons who stand in public position, and who are high-profile personalities who invite comment about themselves.”

I haven't seen a copy of Judge Lamont's judgment and will look out for it but Judge Jajbhay dealt with many of the issues I imagine Judge Lamont considered in his judgment in the Msimang case. In that earlier matter Judge Jajbhay wrote at length about the sorts of competing considerations I expect came into play in Malema's case. The extract below is from Judge Jajbhay's judgment, starting at paragraph 35.

The freedom of the press is celebrated as one of the great pillars of liberty. It is entrenched in our Constitution but it is often misunderstood. Freedom of the press does not mean that the press is free to ruin a reputation or to break a confidence, or to pollute the cause of justice or to do anything that is unlawful. However freedom of the press does mean that there should be no censorship. No unreasonable restraint should be placed on the press as to what they should publish.

As a general matter, any person is likely to feel violated, harmed and invaded by the publication of unlawfully obtained information. Any reasonable person would probably feel less concerned if their discussions of an upcoming metropolitan council election, or the state of the global economy was unlawfully intercepted and subsequently published, than that person would if their discussion of intensely private matters such as family disputes or medical records were illegally intercepted and published for a larger audience. Similarly, on the public interest side of the equation, the public will certainly be interested and accordingly benefit from discussion of matters which are clearly in the public interest.

Public interest it must be noted is a mysterious concept. Like a battered piece of string charged with elasticity, impossible to measure or weigh. The concept changes with the dawn of each new day, tempered by the facts of each case. Public interest will naturally depend on the nature of the information conveyed and on the situation of the parties involved. Public interest is central to policy debates, politics, and democracy. While it is generally acclaimed that promoting the common well-being or general welfare is constructive, there is little, if any, consensus on what exactly constitutes the public interest.

The public has the right to be informed of current news and events concerning the lives of public persons such as politicians and public officials. This right has been given express recognition in Section 16(1) (a) and (2) of the Constitution which protects the freedom of the press and other media and the freedom to receive and impart information and ideas. The public has the right to be informed not only on matters which have a direct effect on life, such as legislative enactments, and financial policy. This right may in appropriate circumstances extend to information about public figures.

The question then is who is a public figure and to what extent may such a public figure rely on his or her right to privacy to prevent publication of matter he or she would rather keep private? Here, professor McQuoid- Mason offers the following test:

“In short it is submitted that the test whether a person is a public figure should be: has he by his personality, status or conduct exposed himself to such a degree of publicity as to justify intrusion into, or a public discourse on, certain aspects of his private life? However, non-actionable intrusions on his privacy should be limited to those that are in the public interest or for the public benefit, so that unjustified prying into personal affairs, unrelated to the person’s public life, may be prevented.”

Where a person seeks publicity and consents to it, or in relevant circumstances, by the nature of the position occupied by the individual, this individual cannot object when his or her actions are publicised. This principle applies equally, in appropriate cases, where the information sought to be published has been unlawfully acquired. However, any such interference must be both reasonable and necessary. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments.

Freedom of expression includes the right to acquire information and to disseminate it. Freedom of expression enables people to contribute to debate on social and moral issues. This right is the most important driver of political discourse so essential to democracy, which in turn is a concomitant of a free society.

The City Press' articles paint a revealing picture of Malema's finances and his dealings with various businesspeople who allegedly make substantial contributions to Malema's trust fund. Regardless of how this affects his political career, the judgment is a welcome contribution to the growing body of law on freedom of expression and where it intersects with privacy rights.

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Image credit: Dada Julius Malema by Roy Blumenthal, licensed CC BY SA 2.0

Super-injunctions, football players and their affairs

While they were initially intended to protect the people whose lives may be at risk should their identities ever be exposed (for example, child offenders), super-injunctions are being used by English celebrities and other personalities to stifle freedom of expression in England and Wales. Not only do these orders prohibit publication of information the applicants regard as sensitive but the orders prohibit any publication of the fact that they exist in the first place. These orders only appear to be enforceable in England and Wales and should be too much of a concern for anyone outside the United Kingdom, as I understand their application.

One case has become particularly well publicized regardless of the super-injunction apparently in force largely due to a @PigSpotter-style Twitter account set up to shine a spotlight on these super-injunctions and the secrets they are intended to hide.

@InjunctionSuper published this tweet exposing an affair between UK soccer star, Ryan Giggs, and Imogen Thomas. This tweet sparked legal proceedings which Ars Technica tried to describe recently:

That brings us to today. An entity going by "CTB" has filed suit against Twitter and some of its users for breaking a super-injunction over... something. According to Bloomberg, there were no details on what the super-injunction was about or who was accused of leaking the information. However, the initials "CTB" are also used in a separate suit about an athlete who won an anonymity order after allegedly having an affair with a reality TV "star," leading many to believe that CTB is the athlete and someone posted details of the affair to Twitter, leading to the new lawsuit.

Twitter is listed as a defendant in the suit, as well as "persons unknown responsible for the publication of information on the Twitter accounts." It's not clear how the High Court plans to get a US company like Twitter to comply, though. According to US law, sites like Twitter and Facebook aren't liable for the crazy postings of their users thanks to Section 230 of the Communications Decency Act, and for most things, users' speech is protected by the First Amendment. 

As for Twitter's response to the story: "We are unable to comment."

Update: We've been informed by our resident Brit (Peter Bright) that CTB is soccer player Ryan Giggs, who is believed to be attempting to cover up his affair with TV personality Imogen Thomas. It's also worth noting that this is information that is easily found on the Web. 

To say the effects of these super-injunctions are chilling is an understatement. I have great difficulty seeing these sorts of orders ever getting past a Constitutional test in our courts and yet they seem to be fairly common in English and Welsh courts, ironically due to an interpretation of the 1998 Human Rights Act passed in the United Kingdom.

Giggs and other super-injunction applicants face a number of practical challenges enforcing their orders. One of those challenges is the Streisand Effect which Giggs appears to be unaware of and which has led to exposure of his identity on Twitter and elsewhere (at one point his name was reportedly mentioned 16 times a minute). His efforts to make use of an extremely onerous legal mechanism (one which UK government ministers are expressing increasing concern over) to stifle freedom of expression in order to keep his alleged affair with Imogen Thomas secret are only contributing to the whole affair's increased publicity.

Underestimating the Streisand Effect is becoming a classic mistake made by litigants and their lawyers who are unfamiliar with the phenomenon and the manner in which these sorts of memes can rapidly go viral across the social Web. It is also a phenomenon which reputation management experts are very much aware of and seek to guard against where possible. The Giggs-Thomas story and the super-injunction used to conceal it will likely be of passing interest for the duration of this particular news cycle but it is yet another reminder of how lawyers must approach certain issues very differently. While Twitter, Facebook and other social Web platforms can be, and are being, used to defame people and invade their privacy, unscrambling those eggs can prove to be virtually impossible.

As I end off this post news is breaking on Twitter that Ryan Giggs has been named in the English House of Commons as the person behind this super-injunction, opening the Twitter flood gates. John Hemming MP is taking advantage of a qualified indemnity granted to English lawmakers to reveal Giggs identity. Officially, at least.

Manto v Sunday Times judgment a victory for free press

The judgment handed down last Friday has been hailed as a victory for the Health Minister by some publications and as a victory for the Sunday Times by others. Neither party is able to declare an outright victory in this matter. The Minister was successful in having her medical records returned to her or her hospital on the basis that they were unlawfully obtained. On the other hand, the paper was given the go ahead to report on the matter based on notes taken by the journalists and information given by their (lawful) sources.

This judgment was, however, a great success for the press and freedom of expression. The relief the Minister sought was, in addition to return of her medical records, that the paper be interdicted from publishing their comments based on her medical records. The judge had the following to say as he began to address this claim:

Freedom of the press does not mean that the press is free to ruin a reputation or break a confidence, or to pollute the cause of justice or to do anything that is unlawful. However freedom of the press does mean that there should be no censorship. No unreasonable restraint should be placed on the press as to what they should publish.

The judge dealt with the tension between the freedom of the press which has its support in the freedom of expression and the Minister's right to privacy and dignity. He also commented on the fact that the Minister, as a public figure, is subject to greater scrutiny than a person who is not a public figure although the judge drew a distinction between the press delving into the Minister's activities as they pertain to her public office and her personal life that is unrelated to her position in the public eye. Just because you are a public figure does not mean that every aspect of your life is an open book to the press.

Because the Constitution is the standard by which all law in South Africa is to be measured, cases such as this one will almost inevitably involve a balancing of rights and Constitutional imperatives. This is a great judgment to read if you are interested in how this balancing is achieved, particularly in this area.