The Johannesburg High Court recently handed down an important judgment which again highlights the extent to which our courts will protect the right to freedom of expression even in cases involving highly controversial material.

The case related to Continental Outdoor Media (Pty) Ltd's (Continental) decision to remove an outdoor advertisement from a billboard alongside the M1 highway in Johannesburg before the agreed flighting period was over. The advertisement in question depicted Israel's occupation of Palestine using three contrasting maps from 1946, 1967 and 2012. The three maps were intended to show that Israel's occupation of Palestine had grown significantly. To the right of the three maps was written in big, bold letters: “Israel’s Occupation of Palestine is Illegal under International Law.” The advert was commissioned by Boycott, Divestment and Sanctions South Africa (BDS SA), a non-profit organisation that has launched a campaign to pressurise private companies as well as the South African government to cut trade with Israel.

While the rental agreement was only due to terminate on 31 May 2013, Continental removed the billboard on 29 October 2012 and claimed that the early removal was justified on the basis of, amongst other things, BDS' non-compliance with advertising by-laws, the Code of the Advertising Standards Authority of South Africa as well as an internal Continental policy. Section 9(h) of the relevant advertising by-laws provided as follows: “In addition to any other prohibition, expressed or implied, in these By-laws, no person may erect, maintain or display any advertising sign which is indecent or suggestive of indecency, prejudicial to public morals, or is insensitive to the public or any portion thereof or to any religious or cultural group.”

BDS applied to the High Court arguing that the words in the by-laws “or is insensitive to the public or any portion thereof or to any religious or cultural group” were plainly unconstitutional. The High Court agreed. Judge Mayat noted that section 16(2) of the Constitution incorporates internal limitations to the right to freedom of speech by excluding propaganda for war, incitement of imminent violence and hate speech from the ambit of constitutional protection. It was common cause that the advertisement did not fall within any of the exceptions in section 16(2).

The Court found that 'insensitivity' to a portion of a religious or cultural group referred to in the by-laws set a far lower boundary than any of the specific limitations in section 16(2) of the Constitution or what could be justified under section 36 of the Constitution (which permits rights to be limited only if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom). The court pointed out that 'insensitivity' is manifestly a subjective feeling and thus there is no objective measure of whether some members of a particular religious or cultural group feel that certain expressions of speech are 'insensitive'. The court also noted, as an aside, that the expression which was being defended by the applicants was based on substantiated facts.

Accordingly the Court held that the removal of the advertisement by Continental was in breach of the 2012 rental agreement and also constituted an infringement of the applicants’ constitutional right to freedom of expression. The Court ordered that Continental reinstate the advertisement within 10 days of the order and gave the City of Johannesburg 12 months to remedy the unconstitutionality of the by-laws.

In our view, the case undoubtedly reached the correct result and is a further victory for freedom of expression. As Judge Mayat emphasised, when determining questions of freedom of speech, the key question is never whether one personally agrees with the message being portrayed. Indeed, quite the contrary. As the famous maxim often attributed to the French philosopher, Voltaire, goes:

“I disapprove of what you say, but I will defend to the death your right to say it.”

Issued by Webber Wentzel