Tydskrif vir Geesteswetenskappe
On-line version ISSN 2224-7912
NEETHLING, Johann. Freedom of (media) speech and the protection of personality rights. Tydskr. geesteswet. [online]. 2009, vol.49, n.1, pp. 43-61. ISSN 2224-7912.
The right to freedom of speech or expression of the press and other media and the personality rights to a good name, dignity, privacy and identity - which are particularly prone to infringements by the mass media - are recognised and protected both at common law and constitutionally in the Bill of Rights. Because freedom of speech and the personality rights concerned are often diametrically opposed, a careful weighing up of the conflicting rights is required. In this regard the common law succeeded in achieving a workable balance between maintaining freedom of speech on the one hand, and the protection of the relevant rights of personality on the other. In the present field this applies particularly to the rules which have been developed with regard to the grounds of justification in order to provide the media with the right to limit the protection of the personality interests involved within delimited, legally acceptable boundaries, as well as to the acceptance of negligence liability of the mass media for defamation. The entrenchment of all these rights in the Bill of Rights nevertheless brought about a new dimension which must now thoroughly be taken into consideration in the weighing-up process. In fact, the courts have a duty to rectify the common law where it deviates from the spirit, purport and objects of the Bill of Rights. But this will not readily be done, since the common law was developed on the basis of contemporary (entrenched) rights that already existed in the pre-constitutional era, and the Bill of Rights therefore merely emphasises the principles already at play in the common law. In dealing with the protection of the four personality rights vis-á-vis the right to freedom of speech, first of all a description is provided of the requirements for an actionable infringement of each personality right by the mass media. Next, the wrongfulness of the violation of each right is examined, emphasising that a factual infringement of the personality interest involved (except in the case of the right to a good name) must simultaneously also be in conflict with the legal convictions of the community (boni mores), sometimes expressed as the opinion, notional understanding and reaction of a reasonable person with normal intelligence and sensibilities. Where this is the case, the infringement is prima facie (seemingly) wrongful but the media defendant may rebut such wrongfulness by proving the existence of a ground of justification for the publication complained of. The relevant grounds are the reporting of proceedings of courts, parliament and public bodies, publishing remarks that are true and in the public interest, fair comment on facts that are true and in the public interest, the reasonable publication of false allegations, the reasonable publication of (false) allegations in the political field, and the publication of personal information that is in the public interest. These grounds of justification do not constitute a closed number, and new grounds may therefore be recognised where legal policy considerations demand that the maintenance of freedom of speech be extended. On the other hand, negligence liability, as damper on freedom of speech, should, as with defamation and for the same considerations, also be applicable to the infringement by the mass media of the other three rights of personality.
Keywords : Bill of Rights; defamation; fair comment; freedom of speech; good name; ground of justification; identity; insult; intent; media; media privilege; negligence; personality rights; political privilege; press; privacy; privileged reporting; public interest in information; truth and public interest; wrongfulness.