MULTICHOICE KYKNET CHANNEL 144

Transcription

1 DATE OF HEARING: 13 NOVEMBER 2014 JUDGMENT RELEASE DATE: 02 DECEMBER 2014 CASE NUMBER: 43/2014 MULTICHOICE KYKNET CHANNEL 144 APPELLANT VS REINHARDT S PLACE PRETORIUS 1 st RESPONDENT 2 ND RESPONDENT TRIBUNAL: DR LINDA VENTER (CHAIRPERSON) DR NANA MAKAULA-NTSEBEZA MS REFILOE MOKOENA-MSIZA PROF MARINUS WIECHERS The Complainants were unable to attend. For the Respondent: Dr Dario Milo: Partner and Mr Stuart Scott: Candidate Attorney of Webber Wentzel Attorneys accompanied by Mr Bruce Mkhize, Regulatory Compliance Manager, DSTV Appeal against decision of First Tribunal - First Tribunal finding broadcast in contravention of clause 28.4 of the Subscription Code because the mimicry in the programme amounted to a serious impairment of the dignity of persons who suffer from Tourette s syndrome, and that the comedic nature of the episode exacerbated the effect Appeal Tribunal finding that First Tribunal was clearly wrong (as required by the Procedure of the Commission) to hold that the Subscription Code had to be widened, in terms of Section 39(2) of the Constitution, to include any broadcast and not only broadcasts in which news and comment were presented - Appeal upheld MultiChoice KykNET vs Reynhardt s Place and Pretorius Judgment: Case No: 43/2014 (BCCSA Appeal Tribunal).

2 2 SUMMARY Appeal against the judgment of the Tribunal of first instance which found that the broadcast by MultiChoice was in contravention of Clause 28.4 of the Subscription Broadcasting Licensees Code, since the dignity of persons suffering from Tourette s syndrome was impaired by the comedic skit that was broadcast. A R fine was imposed on the Broadcaster. Although Clause 28.4 only refers to news and comment programmes, the First Tribunal held that Section 39(2) of the Constitution of the Republic places an obligation on every court, tribunal or forum to promote the spirit, purport and objects of the Bill of Rights when developing the common law. The section was applied in coming to the conclusion that the Subscription Code had to be widened, in terms of this section of the Constitution, to include any broadcast and not only broadcasts in which news and comment were present. The Appeal Tribunal came to the conclusion that clause 28.4 clearly intended to only protect dignity in cases of news and comment and that it would be too drastic to widen the scope of the clause to include other categories of broadcasts. The matter should rather be considered by the Commission at a General or Special meeting. The Appeal was upheld. JUDGMENT DR. LINDA VENTER [1] This is an appeal against the finding by the Tribunal of first instance, chaired by Prof Kobus van Rooyen, the chairperson of the BCCSA. This First Tribunal found that the broadcast by MultiChoice KykNET (channel 144), the Appellant in this matter, was in contravention of Clause 28.4 of the Subscription Broadcasting Licensees Code, since the dignity of persons suffering from Tourette s syndrome was impaired by the broadcast and a R fine was imposed on the Broadcaster. Although Clause 28.4 only refers to news and comment programmes, the First Tribunal held that Section 39(2) of the Constitution of the Republic of South Africa (1996) (the Constitution) places an obligation on every court, tribunal or forum to promote the spirit, purport and objects of the Bill of Rights when developing the common law. This section was applied in coming to the conclusion that the Subscription Code had to be widened in order to include any broadcast and not only broadcasts in

3 3 which news and comment were present. The appeal is against both the finding and the penalty. [2] The programme forms part of MultiChoice s comedy show, "Proesstraat", broadcast on the KykNET channel, and is based on a German improvisational comedy show. The programme is a dramatic work in the form of a play which is recorded in front of a live audience. The play features a number of characters who are not provided with a script and are requested to act to certain instructions provided by a director. This results in the characters mimicking the instructions to the live audience as the plot is improvised. In the programme in question, an actress in the group was instructed by the director to mimic a person with Tourette s syndrome. It is this insert that resulted in the complaints. [3] The original complaints read as follows: Reynhardt s Place/E. Botha: We hereby wish to lodge a complaint regarding the broadcasting of two episodes of the Afrikaans TV Channel, KykNET s comedy show named Proesstraat. On February 10 th and March 10 th 2014, actress Elize Cawood, instructed two of the actors, to pretend and act as though they are Tourette Syndrome sufferers After the viewing of the February 10 th broadcast at 8pm of Proesstraat, we immediately took the producer to task (see correspondence). We duly, accepted his apology and assurance regarding this most sensitive matter. On March 10 th, the said director once again instructed a team member to act as though he is suffering from Tourette syndrome! We here at Reinhardt s Place, are taking care of a very special group of people. Autism, Tourette syndrome, Down Syndrome, cerebral palsy, brain injured these are terms, that we are familiar with. We have dedicated our lives, to people suffering from these conditions. The devastating impact not only on the person diagnosed with Tourette Syndrome, but also on the parents and siblings of these families, is simply heart wrenching..we simply cannot allow for celebrities, to ridicule Tourette syndrome. It is definitely not amusing or funny and we do see this as an infringement on the human rights of those afflicted with this condition. We trust that you will take action, regarding this complaint. M. Pretorius: Met hierdie skrywe wil ek net my uiterste skok en teleurstelling uitspreek oor die totale onsensitiewe en uiterste swak smaak wat weerspieel is tydens hierdie program aangaande die opdrag vanaf Elize Cawood om iemand te moet namaak wat Taurette sindroom het! Doen asseblief navorsing oor hierdie uiterste tragiese toestand. Ek wil eerstens weet wie hierdie program geredigeer en goedgekeur het om op die lug te verskyn. Tweedens eis ek, ja ek eis dat julle in julle volgende program, oor die lug, voor die aanvang van die program amptelik en publiek om verskoning vra vir hierdie banaliteit. Ja, ek is ernstig kwaad en ontsteld omdat ek persoonlik familie en vriende het wat elke dag van hulle lewe in huisgesinne met die tragiese gevolge van hierdie toestand moet probeer oorleef. Daar is nie n sinvolle en kommervrye lewe met Taurette sindroom nie! Huwelike sneuwel, kinders word verwerp en die ander ouer sit dan vir die res van hulle

4 4 lewe in hierdie hel en tronk. Selfs die publiek het geen simpatie as n persoon so aanval kry nie. Almal kyk ander pad en probeer so vinnig as moontlik wegkom van hierdie rukkende en wriemelende siel. Praat gerus met Dr Franco van n Lewe Met Voordat julle nie self by inrigtings soos Weskoppies, Witrand en hierdie instansies gaan staan en kyk deur watter helse wroeging so kind of mens gaan nie, sal julle geen,maar geen benul he hoe ernstig dit is nie...en nee, dit is nie al nie, julle moet ook nog langer bly om die nagevolge van so n aanval te aanskou!! Die Departement van Geestesgesondheid behoort ook oor hierdie voorval ingelig te word. Ek klim nie hier op my moral high horse nie, maar dat n gewilde kanaal soos KykNET so laag gedaal het is hartverskeurend...net so hartverskeurend as n persoon met Taurette s in, en na n aanval! Komaan, ruk julle self reg want as julle dit nie gaan doen nie, met wat en wie gaan julle die volgende keer die spot dryf. As n kind was ons opgevoed om n gestremde persoon, van watter aard ookal, met die uiterste respek en liefde te behandel, maar moet ek vinnig byvoeg, dit is n goeie 60 jaar later! Nou IS ek op my moral high horse, hierdie is geensins vermaaklik nie! [4] The broadcaster's response provided argument regarding Clause 28.4 of the Code (as requested by the Registrar of the BCCSA) that entailed a description of the nature of the programme, as well as a submission that there was no contravention of the Code since Clause 28.4 is not applicable to the broadcast, which is a comedy and not a news or comment programme. Notwithstanding, the broadcaster acknowledged the sensitive nature of the issue for people living with Tourette s syndrome, and stated that they have empathy with and respect for the complainants personal concerns and subsequent reaction and apologised for any unintended offence caused. It is not necessary to repeat the broadcaster s response verbatim, as all the arguments contained in the response are dealt with comprehensively in the Appellant's submissions and will be discussed in the reasoning of this judgment. [5] Dr Dario Milo and Mr Stuart Scott from Webber Wentzel Attorneys, on behalf of the Appellant, provided a comprehensive Note for Argument 1 to assist the Appeal Tribunal with signposts to their oral argument during the appeal hearing. We shall follow the order of the Note for Argument because of its logical structure. 1 In a document entitled: Note for Argument on Appeal (Final)

5 5 [6] The first question is whether a matter of dignity may be heard where a person suffering from Tourette s syndrome did not complain. The general approach of the Tribunal is that in cases which pertain to dignity, the person whose dignity has been affected must complain personally. However, in at least two matters 2 the Tribunal has permitted people who are in charge of minors to file complaints and in all the matters this was acceptable. There is no reason to amend that approach in this matter, since the matter falls to be decided on the question whether section 39(2) of the Constitution should have been employed to widen the scope of clause [7] As mentioned, the crux of this appeal is the interpretation of Clause 28.4 and whether the Tribunal was empowered to extend the ambit of a clearly worded and unambiguous clause in the Subscription Code (Clause 28.4) to reach programmes other than those dealing with "news" or "comment". In fact, this is the point on which Prof van Rooyen allowed the application for leave to appeal. He mentioned that he had not put this matter to the representative of KykNET during the hearing and that it was only fair to allow this matter to be argued on appeal. In the section of the Code headed News and comment on matters of public importance, Clause 28.4 of the Broadcasting Code for Subscription Broadcasters provides as follows: Insofar as both news and comment are concerned, broadcasting licensees must exercise exceptional care and consideration in matters involving the private lives, private concerns and dignity of individuals, bearing in mind that the rights to privacy and dignity may be overridden by a legitimate public interest. According to the Code news reports must be truthful, accurate and fair, presented in the correct context and in a fair manner, without intentional or negligent departure from the facts by distortion, exaggeration or misrepresentation, material omissions or summation. Comment must be an honest expression of opinion and 2 New Hope School & Others v Jacaranda Radio (Case 5/2012); Botha v Jacaranda Radio (Case 25/2012).

6 6 presented in such a manner that it appears clearly to be comment, made on facts truly stated or fairly indicated and referred to. The Appeal Tribunal now has to consider whether or not the decision of the Tribunal of first instance was "clearly wrong", as required by clause 4.9 of the "Procedure of the Commission". [8] As already mentioned, the First Tribunal held that section 39(2) of the Constitution places an obligation on every court, tribunal or forum to promote the spirit, purport and objects of the Bill of Rights when developing the common law. The First Tribunal found that Clause 28.4 needed to be interpreted in the light of section 39(2) of the Constitution to broaden the clause in order to protect dignity in all broadcasts (i.e. not only news and comment or matters of public interest). Prof. Wiechers stated that it is indeed possible and often necessary to interpret quasi legislation in the light of section 39(2) of the Constitution. However, it is clear that Clause 28.4 already incorporates the spirit, objects and purport (Section 39(2) of the Constitution) of the Bill of Rights insofar as privacy and dignity are protected with the corrective of public interest, which does not go against the Human Rights Bill. Therefore, it is not necessary to widen the clause any further. Theatrical plays can be viewed as comment if the content is based on a news event, for example a political murder case. However, then it will not fall within the ambit of Clause 28.4 anymore, but within the protection given to artistic freedom, which is again limited with regard to hate speech, extreme violence, etc. [9] The Appellant argued that unlike a High Court, the BCCSA lacks inherent jurisdiction. As the Supreme Court of Appeal held in Special Investigating Unit v Nadasen 3 : 3 [2002] 2 All SA 170 (A).

7 7 A tribunal under the Act, like a commission, has to stay within the boundaries set by the Act and its founding proclamation; it has no inherent jurisdiction and, since it trespasses on the field of the ordinary courts of the land, its jurisdiction should be interpreted strictly. (Emphasis added.) At the hearing the Appellant emphasised that the Constitutional Court on numerous occasions has made it clear that the limit to section 39(2) is what the language of the provision is reasonably capable of meaning, and that an interpretation may not be unduly strained. 4 Where the language is not reasonably capable of the mooted meaning, then the court may not rely on an interpretation under section 39(2). It should be noted that the First Tribunal accepted that there are limits to the duty under section 39(2) and quoted the following paragraph from the Robinson case 5 in its ruling regarding section 39(2): [T]he High Court misconceived the extent of its power to construe a legislative provision consistently with the Constitution. A Court's power to do so is not unqualified; a Court cannot give a meaning to the provision which it regards as consistent with the Constitution without more. The provision concerned must be reasonably capable of the preferred construction without undue strain to the language of the provision. The words 'liable to be surrendered', in their context, are incapable of bearing the meaning contended for. (Emphasis added.) In paragraph 4 of the First Tribunal s judgment, it further acknowledged the limits to using section 39(2) in order to broaden a clause: "Of course there are limits to this duty, but I do not think that the broadening of the clause in this case is foreign to the Code which, in any case, protects privacy and dignity in news and comment. The Code for Free-To-Air Broadcasters protects dignity, privacy and reputation in all broadcasts. It would indeed be extraordinary if a broadcaster such as KykNET, which is primarily a South African subscription broadcaster, were to fall under a different domain in so far as the protection of dignity is concerned. In fact, it would also be strange if a foreign broadcaster that broadcasts on the MultiChoice channel were permitted to invade the privacy or dignity of a person, outside of the usual restriction of news and comment. (Emphasis added.) The Appellant counters this argument by stating that the correct test is not what would not be "foreign to the Code", but what the particular clause can reasonably mean without the interpretation being unduly strained. 4 See, for instance, Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Distributors (Pty) Ltd v Smit NO and Others 2001 (1) SA 545 (CC) at para Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (4) SA 1 (CC).

8 8 [10] The members of the Appeal Tribunal are of the opinion that the language used in Clause 28(4) is not ambiguous and that broadcasters are not in the dark with regard to its meaning. They felt that the reason for being more lenient in the Subscription Code than in the Free-to-Air Code is that apart from the comprehensive system of classifications, advisories, electronic locking devices, etc. which subscription broadcasters have in place, subscribers make the choice to subscribe to their services. Consequently they have a wide selection of channels to choose from and can easily switch to another channel if they find a programme to be offensive. Also in terms of the protection of children, the watershed time is more lenient for subscription broadcasters. It seems that it was a conscious decision of the drafters of the Subscription Code to protect dignity only in news, comment and in cases of public interest and not in entertainment programmes since it was not in the first place the purpose of the Clause to include the entertainment genre, such as comedy or drama. Even if one should argue that a programme such as the one under discussion can be regarded as social comment, this argument will not succeed since it was clearly not the meaning that the drafters of the Code had in mind. In our view they purposefully did not include entertainment programmes. The two codes do not deal with the same domain and each must be interpreted on its own terms, otherwise there would only be one Code to regulate all broadcasters. The programme under discussion falls in the genre of drama since it is a comedy. In a BCCSA judgment concerning the M- Net Masterchef reality series 6, it was held that since the mundane aspects dealt with in a reality programme do not entail legitimate public interest, it cannot fall within Clause 28.2 of the Code. For the same reason the over the top acting in the Proesstraat comedy cannot fall within clause 28.4 of the Code. [11] Paragraph 11 of the Chetty (Masterchef) case mentioned above, reads as follows: It is true that section 39(2) of the Constitution of the Republic of South Africa 1996 obliges a court and other tribunals such as the BCCSA, when interpreting legislation, to promote the spirit, purport and objects of the Bill of Rights. A Court and this Tribunal should, of course, bear in mind 6 Chetty v M-Net (Case No 41/2012).

9 9 that Parliament is the major engine in law reform and that a court or tribunal should take care not to usurp that function. In Director of Public Prosecutions, Cape of Good Hope v Robinson, Yacoob J said the following in regard to the scope within which s 39(2) is permitted to be applied: [54] Fourthly, the High Court misconceived the extent of its power to construe a legislative provision consistently with the Constitution. A Court's power to do so is not unqualified; a Court cannot give a meaning to the provision which it regards as consistent with the Constitution without more. The provision concerned must be reasonably capable of the preferred construction without undue strain to the language of the provision. Paragraph 12 states that... it is clear that this Tribunal would have to lift the words public importance from clause 28 if it were to broaden the scope of the clause... That would amount to a fundamental change to a clause which obviously does not deal with mundane matters such as the results of a reality show. Paragraph 13 states that...within a Constitutional Democracy there is, fortunately, no power for a Court or, for that matter the BCCSA Tribunal, to fill in gaps in the Law or Code which it applies. This issue is also addressed in the following dictum of The House of Lords 7 : All citizens should be able to rely on obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based on those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and... that, once the dispute has been submitted to a court of law, they should be able to rely on there being no usurpation by any other person of the function of that court to decide it according to law. [12] The Appellant submits that we are dealing with a similar situation as in the Chetty complaint; that the First Tribunal s decision amounts to lifting the words news and comment as well as public interest from the Clause. And that the First Tribunal therefore overstepped its authority under section 39(2) of the Constitution. The context of the programme and the guarantee of freedom of speech must be taken into consideration, otherwise all comedy concerning medical conditions could be found to be in contravention of the Code. It is not necessarily the case that all speech which pokes fun at those with medical conditions should automatically be regarded as an abuse of free speech and an impairment of dignity. Thus the right to broadcast humour which may offend 7 Per Lord Diplock in Attorney General v Times Newspapers Ltd [1973] 3 All ER 54 (HL) at 72.

10 10 (whether in films, comedy skits or television programmes, for example, satire in South Park and the Oscar-winning film, The King s Speech, which was about King George VI overcoming his stammer) and the public's right to enjoy such humour (though many may find it offensive and in poor taste) becomes an issue if Clause 28.4 should protect dignity in all broadcasts. The Appeal Tribunal came to the conclusion that even programmes that poke fun at those with medical conditions, depending on the context, are permitted in open and democratic societies. In fact, such bona fide dramatic and comedic expressions are exempted from certain limitations. [13] Paragraphs 5 and 6 of the First Tribunal s judgment state that "the dignity of people who suffer from Tourette s syndrome is of substantially greater importance than the right to artistic freedom." However, as stated by the European Court for Human Rights in Handyside v The United Kingdom 8, freedom of expression extends "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". As a matter of fact, in the case of SABC v Blem and Others 9 the following is stated: "One of the demands of living in a democratic society is that one should be tolerant of material that offends, shocks, or disturbs". [14] Contrary to what the complainants argue, the members of the Appeal Tribunal felt that the comedy skit did not go beyond the contemporary South African standard of tolerance. From the laughing responses of the live audience it was evident that they enjoyed the performance, although it certainly could be seen as offensive and in very poor taste by many viewers, particularly by family members of sufferers from Tourette s syndrome. However, the members of a Tribunal are not called upon to be arbiters of taste or judges of humour. Whatever our individual sensitivities or personal opinions might be, we are obliged to interpret the Code in a manner which protects all human rights. In the present matter the dignity of 8 (1974) 1 EHRR 737 at BCCSA Case 24/A/2012

11 11 people who suffer from Tourette s syndrome cannot be seen as being of substantially greater importance than the rights to freedom of expression and of artistic freedom. The light-hearted comedy took place in the context of an improvised dramatic work before a live audience, it was clearly a dramatic and artistic broadcast, and it was understood and interpreted by the audience in that light. It was never intended to be taken seriously or to hurt or offend sufferers from Tourette s syndrome. The Reynhardt s Place complainants place Tourette s syndrome in the same category as Autism, Down Syndrome, Cerebral Palsy, and brain injured people. However, Prof. Wiechers (having extensive knowledge of such cases) stated that in earlier years Tourette s syndrome was readily diagnosed, but that psychiatrists and psychologists are more careful nowadays and focus more on possible brain damage. Tourette s syndrome is linked more to attention deficiency without labelling it as a psychiatric or psychological disability for which sufferers must be institutionalised. [15] We are aware of the fact that the producer of the programme, Mr. Richter, has promised one of the complainants not to include an instruction to mimic Tourette s syndrome in future programmes. The Appellant also refers to correspondence with the producer, in which the latter undertook not to include any more skits in Proesstraat which impersonate people with Tourette s syndrome. However, Mr. Richter s promise applied in respect of future recordings. Unfortunately a second episode that included a similar skit had already been recorded and delivered to KykNET as part of the series at the time of Mr Richter s reply. At the hearing, Mr. Mkhize from MNet, informed us that due to miscommunication between the producer and the broadcaster, the second similar skit was broadcast a month later. However, the commitment not to record such scenes in future still stands. Of course the BCCSA can only enforce its Codes of Conduct and not undertakings by broadcasters. This is a matter between the broadcaster and the complainants which, however is worthy of consideration from a moral point of view.

12 12 [16] This brings us to the last ground of appeal, namely the sanction. In the light of our finding that the finding of the First Tribunal on the merits was not justified, the sanction, of course, also falls away. [17] We do not find it necessary to go into the other arguments of the Appellant. Suffice it to say that from a moral point of view, it is understandable that the First Tribunal had sympathy with the sensitivities of a minority group who indeed is in need of respect, and who should preferably not be made the laughing stock of a light comedy. However, taking into consideration the clear and specific wording of Clause 28.4, in our view, this case lacks the seriousness to substantiate a proposal for an amendment of this Clause at this time. Of course, the BCCSA is, as always, open to argument during hearings before the Tribunal as to the interpretation and application of its Codes, including the ambit of protection which should be afforded to dignity. [18] The reasons why we differ from the First Tribunal in finding a contravention of Clause 28.4 of the Code, and imposing a fine of R30 000, are set out in detail above. The appeal accordingly succeeds and the decision of the Tribunal is set aside. L VENTER CHAIRPERSON OF THE APPEAL TRIBUNAL Commissioner Makaula-Ntsebeza and Acting Commissioners Mokoena and Wiechers concurred in the above judgment of the Chairperson