Legitimate protection of the public or censorship? Advertising controls and the right to freedom of speech

• Jurisdiction: South Africa
• Published date: 25 May 2019
• Author: T A Woker
• Pages: 291-309
• Date: 25 May 2019

Legitimate Protection of the Public or

Censorship? Advertising Controls and

the Right to Freedom of Speech

TA WOKER*

University of Natal, Durban

1 Freedom of Expression as a Fundamental Right

Freedom of expression is arguably regarded as one of the most

important of the fundamental rights.

1

The right to freedom of expression

encompasses the right to freedom of speech. It is a wider concept than

freedom of speech as it includes, for example, symbolic acts such as the

burning of a flag.

2

This article focuses on freedom of expression as it

relates to speech and in particular commercial speech.

The United Nations General Assembly, at its first session, declared

that '[f]reedom of information is a fundamental human right and . . . the

touchstone of all the freedoms to which the United Nations is

consecrated'.

3

In 1948 the United Nations adopted the Universal

Declaration of Human Rights which has had a tremendous influence

on the development of both international and national human rights

law.

4

Article 19 of the Declaration proclaims the right to freedom of

expression, which includes freedom 'to seek, receive and impart

information and ideas through any media regardless of frontiers'. The

European Court of Human Rights has also emphasised the importance of

the right in a democratic society:

'Freedom of expression constitutes one of the essential foundations of such [a democratic]

society, one of the basic conditions for its progress and for the development of every man.

Subject to Article 10(2), it is applicable not only to "information" or "ideas" that are

favourably received or regarded as inoffensive or as a matter of indifference, but also to

those that offend, shock or disturb the State or any section of the population. Such are

the demands of that pluralism, tolerance and broad-mindedness without which there is

no democratic society.'

5

* BA LLB (Natal) LLM (Natal). Associate Professor of Business Law, Faculty of Law,

University of Natal, Durban.

1

See generally J van der Westhuizen 'Freedom of Expression' in: D van Wyk, J Dugard, B de

Villiers & D Davis (eds)

Rights and Constitutionalism

(1994) at 264; A Cachalia, H Cheadle, D

Davis, N Haysom, P Maduna & G Marcus

Fundamental Rights in the New Constitution

(1994) at

53; M Chaskalson, J Kentridge, J Klaasen, G Marcus, D Spitz & S Woolman

Constitutional Law

of South Africa

(1996) at 20-1 — 20-45.

2

See e g

United States v O'Brien

391 US 367 (1968);

Clark v Community for Creative Non-

Violence

468 US 288 (1984);

Tinker v Des Moines Independent Community School District

393 US

503 (1969).

3

GA Resolution 59(1), 14 December 1946.

4

The Article 19 Freedom of Expression Manual International and Comparative Law, Standards

and Procedures

(August 1993).

5

See

Handyside v United Kingdom

(judgment of 7 December 1976, Series A no 24);

The Sunday

Times v United Kingdom

(judgment of 26 April 1979, Series A no 30), quoted in

The Article 19

Freedom of Expression Manual

op cit note 4.

291

(1997) 9 SA Merc LJ 291

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292



(1997) 9 SA Mere LJ

Section 16 of the South African Constitution

6

is entitled 'Freedom of

expression' and reads as follows:

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

—

(a)

freedom of the press and other media;

(b)

freedom to receive and 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.'

A number of different reasons have been advanced as to why freedom

of expression is fundamental to a society based on freedom and

democracy.' Perhaps the most important is that people have a right to

be heard — a right to participate in the 'market place of ideas'.

8

Holmes J

in his dissenting judgement in

Abrams v United States

9

held that

'[i]f you have no doubt of your premises or your power and want a certain result with all

your heart you naturally express your wishes in law and sweep away all opposition. . . .

But when men have realised that time has upset many fighting faiths, they may come to

believe even more than they believe the very foundations of their own conduct that the

ultimate good desired is better reached by free trade in ideas — that the best test of truth

is the power of the thought to get itself accepted in the competition of the market, and

that truth is the only ground upon which their wishes safely can be carried out.'

10

Although freedom of expression was designed to ensure that political

speech or expression was not stifled and that people could express

contentious views without fear of suppression, the right has become

increasingly important to advertisers who have relied on it to protect

controversial advertising campaigns." It is now generally accepted that

advertising or commercial speech is entitled to constitutional protec-

tion.

12

Moreover, the provisions of section 16 of the South African

Constitution are relevant to advertising because advertising is about

imparting information to consumers. Without advertising, consumers

would not know what was available or where to get it.

13

A study

conducted in America and Germany showed that advertising is the most

important source of product and purchasing information available to

6

Act 108 of 1996. Section 16 forms part of Chapter 2: Bill of Rights of the Constitution and it

replaced s 15 of the Interim Constitution 200 of 1993 which also dealt with freedom of expression.

7

See e g

Mandela v Falati

1995 (1) SA 251 (W);

Government of the Republic of South Africa v

The Sunday Times Newspaper

1995 (2) BCLR 182 (T).

This well-known metaphor has been used to articulate the idea that in order to prevent truth

from being suppressed unpopular and even false ideas must be allowed to be expressed. A full

discussion of the philosophical and policy considerations surrounding this right are beyond the

scope of this article. For further information, see e g Van der Westhuizen op cit note 1 at 288;

Chaskalson et al op cit note 1 at 20-4 et seq; LH Tribe

American Constitutional Law

2 ed (1988)

passim; G Stone, L Seidman, C Sunstein & M Tushnet

Constitutional Law

2 ed (1991) passim.

9

250 US 616 (1919).

10

At 630.

11

See Van der Westhuizen op cit note 1 at 289.

12

See Tribe op cit note 8 at 890; JD Whyte, WR Lederman & DF Bur

Canadian Constitutional

Law — Cases, Notes and Materials

3 ed (1992) at 19-28 and 22-51.

13

See generally F Jefkins

Advertising

(1992) at 9; R Sinclair & M Baranblatt

The South African

Advertising Book

(1993) at 1; L Koekemoer

Profit from Effective Advertising

(1990) at 7.

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