Paul Jacobson

The thing with censorship and freedom of expression …

This was going to be a comment in response to Twylite’s comment on my post about Patricia De Lille’s call for censorship of bloggers but it started to develop into a full post instead.

When the government starts telling us what we can and can’t say, we have censorship. I do agree with one aspect of Twylite’s post (which is worth reading, by the way) and that is the reference to the limitations clause in the Bill of Rights which operates to limit the exercise of a right by a law of general application and on a basis consistent with the underlying principles of the Constitution.

The right to freedom of expression is limited where it constitutes propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Short of that and a valid reason to limit that right in terms of the limitations clause, we retain the right to say what we want. The right to freedom of expression is not limited to people who identify themselves and denied to those who remain anonymous (leaving aside the fact that few people on the Web are truly anonymous). In fact I think that there may be circumstances where the only way to truly express oneself may be anonymously.

This call for government to limit the right to freedom of expression because someone has been defamed is a disproportionate use of state power and I don’t really care what “democratic nations have found in their highest courts”. There are certain ideals which are not upheld by democratic governments and it takes a committed group of citizens (and sometimes people who are not citizens) to argue against those practices that run contrary to those ideals. This may just be a matter of a minority party leader calling for restrictions on what can be published on blogs but it when a government starts to impose seemingly minor limitations it starts down a slippery slope and pretty soon we find ourselves with a gaping hole where our freedom of expression used to be but for the whittling down of that right by numerous minor limitations of that right.

Our right to freedom of expression must be vigorously protected and limitations on that right should be restrictively construed because once respect for those fundamental rights are gone, it is pretty difficult to get it back.


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  1. De Lille linkbaits bloggers at Uno se Blog

    […] Paul […]

    Reply
  2. avatar
    Anonymous

    That’s quite a compliment. Thank you 🙂 I apologise for the tone I adopted in my previous comment.

    I agree completely that the right to freedom of expression must be protected. But so too must the duties of citizens be enforced, so that citizens do not infringe on the rights of others. The constitution recognises and enshrines this balance, and requires government to pass laws to ensure this balance.

    Thus the right to freedom of expression is limited by the explicit exclusions of hate speech and incitement in section 16(2), but also by the rights to dignity and good name (the constitutional basis of defamation).

    Your personal freedom of expression is also limited by the law of contract and any contracts into which you enter voluntarily that restrict your freedom. In fact simply working for someone places upon you a duty of good faith which restricts your right to speech insofar as you cannot in good faith tell the public or competitors about certain aspects or plans of the business.

    The right to security also restricts your freedom of expression, in particular where it comes to issues deemed to be in the interest of national security (that is, the security of the country, its people and its economy), where you can be forced to keep information secret.

    If you’re going to define censorship as any rule that restricts what can possibly be put into words, then yes, De Lille is calling for censorship. But then the constitution also requires censorship — of hate speech, or defamatory statements, etc. Is this really censorship?

    Censorship is more commonly understood as a restriction placed on free speech; but free speech is a subset of all speech. Free speech is protected speech, and excludes those things – like hate speech – that are unprotected. In this context De Lille did not directly call for censorship. In fact her concern was directed at the fact that a blogger allegedly engaging in unprotected speech could not be identified.

    Please don’t mistake what I said about limitation of anonymity for a requirement to identify yourself. If you write a letter to the editor of a newspaper (for publication on a letters page) you can remain anonymous by using a pseudonym, but the newspaper will not publish the letter unless you provide your real identity. That way if the newspaper is served a subpoena they can provide your details to the court, and you can be held accountable for your words.

    This is a duty imposed on all persons, natural and juristic, by our constitution. Section 32 provides for access to information, and that any person may be called upon to surrender information that is required by another person to protect their rights.

    If the government is to succeed in its duty to protect rights, it has to be able to enforce duties. The right to life is paired with the duty not to kill. The right to freedom of expression is paired with the duty not to incite violence. In order to enforce or police those duties the government uses Section 36 of the constitution to ensure that you can be held accountable for your actions.

    If we are to ensure that people are being faithful to their duty not to incite violence, or spread hatred of arbitrary groups, or deframe, then their must be a mechanism for those people to be identified after the fact. The alternative is to force everyone to have their speech approved before the fact.

    The former is a restriction of anonymity that ensures that you cannot hide from the *judiciary* (but you can otherwise remain anonymous). The latter is censorship.

    Reply
  3. avatar
    Anonymous

    That’s quite a compliment. Thank you 🙂 I apologise for the tone I adopted in my previous comment.

    I agree completely that the right to freedom of expression must be protected. But so too must the duties of citizens be enforced, so that citizens do not infringe on the rights of others. The constitution recognises and enshrines this balance, and requires government to pass laws to ensure this balance.

    Thus the right to freedom of expression is limited by the explicit exclusions of hate speech and incitement in section 16(2), but also by the rights to dignity and good name (the constitutional basis of defamation).

    Your personal freedom of expression is also limited by the law of contract and any contracts into which you enter voluntarily that restrict your freedom. In fact simply working for someone places upon you a duty of good faith which restricts your right to speech insofar as you cannot in good faith tell the public or competitors about certain aspects or plans of the business.

    The right to security also restricts your freedom of expression, in particular where it comes to issues deemed to be in the interest of national security (that is, the security of the country, its people and its economy), where you can be forced to keep information secret.

    If you’re going to define censorship as any rule that restricts what can possibly be put into words, then yes, De Lille is calling for censorship. But then the constitution also requires censorship — of hate speech, or defamatory statements, etc. Is this really censorship?

    Censorship is more commonly understood as a restriction placed on free speech; but free speech is a subset of all speech. Free speech is protected speech, and excludes those things – like hate speech – that are unprotected. In this context De Lille did not directly call for censorship. In fact her concern was directed at the fact that a blogger allegedly engaging in unprotected speech could not be identified.

    Please don’t mistake what I said about limitation of anonymity for a requirement to identify yourself. If you write a letter to the editor of a newspaper (for publication on a letters page) you can remain anonymous by using a pseudonym, but the newspaper will not publish the letter unless you provide your real identity. That way if the newspaper is served a subpoena they can provide your details to the court, and you can be held accountable for your words.

    This is a duty imposed on all persons, natural and juristic, by our constitution. Section 32 provides for access to information, and that any person may be called upon to surrender information that is required by another person to protect their rights.

    If the government is to succeed in its duty to protect rights, it has to be able to enforce duties. The right to life is paired with the duty not to kill. The right to freedom of expression is paired with the duty not to incite violence. In order to enforce or police those duties the government uses Section 36 of the constitution to ensure that you can be held accountable for your actions.

    If we are to ensure that people are being faithful to their duty not to incite violence, or spread hatred of arbitrary groups, or deframe, then their must be a mechanism for those people to be identified after the fact. The alternative is to force everyone to have their speech approved before the fact.

    The former is a restriction of anonymity that ensures that you cannot hide from the *judiciary* (but you can otherwise remain anonymous). The latter is censorship.

    Reply
  4. avatar
    Anonymous

    That’s quite a compliment. Thank you 🙂 I apologise for the tone I adopted in my previous comment.

    I agree completely that the right to freedom of expression must be protected. But so too must the duties of citizens be enforced, so that citizens do not infringe on the rights of others. The constitution recognises and enshrines this balance, and requires government to pass laws to ensure this balance.

    Thus the right to freedom of expression is limited by the explicit exclusions of hate speech and incitement in section 16(2), but also by the rights to dignity and good name (the constitutional basis of defamation).

    Your personal freedom of expression is also limited by the law of contract and any contracts into which you enter voluntarily that restrict your freedom. In fact simply working for someone places upon you a duty of good faith which restricts your right to speech insofar as you cannot in good faith tell the public or competitors about certain aspects or plans of the business.

    The right to security also restricts your freedom of expression, in particular where it comes to issues deemed to be in the interest of national security (that is, the security of the country, its people and its economy), where you can be forced to keep information secret.

    If you’re going to define censorship as any rule that restricts what can possibly be put into words, then yes, De Lille is calling for censorship. But then the constitution also requires censorship — of hate speech, or defamatory statements, etc. Is this really censorship?

    Censorship is more commonly understood as a restriction placed on free speech; but free speech is a subset of all speech. Free speech is protected speech, and excludes those things – like hate speech – that are unprotected. In this context De Lille did not directly call for censorship. In fact her concern was directed at the fact that a blogger allegedly engaging in unprotected speech could not be identified.

    Please don’t mistake what I said about limitation of anonymity for a requirement to identify yourself. If you write a letter to the editor of a newspaper (for publication on a letters page) you can remain anonymous by using a pseudonym, but the newspaper will not publish the letter unless you provide your real identity. That way if the newspaper is served a subpoena they can provide your details to the court, and you can be held accountable for your words.

    This is a duty imposed on all persons, natural and juristic, by our constitution. Section 32 provides for access to information, and that any person may be called upon to surrender information that is required by another person to protect their rights.

    If the government is to succeed in its duty to protect rights, it has to be able to enforce duties. The right to life is paired with the duty not to kill. The right to freedom of expression is paired with the duty not to incite violence. In order to enforce or police those duties the government uses Section 36 of the constitution to ensure that you can be held accountable for your actions.

    If we are to ensure that people are being faithful to their duty not to incite violence, or spread hatred of arbitrary groups, or deframe, then their must be a mechanism for those people to be identified after the fact. The alternative is to force everyone to have their speech approved before the fact.

    The former is a restriction of anonymity that ensures that you cannot hide from the *judiciary* (but you can otherwise remain anonymous). The latter is censorship.

    Reply
  5. Twylite avatar
    Twylite

    That’s quite a compliment. Thank you 🙂 I apologise for the tone I adopted in my previous comment.

    I agree completely that the right to freedom of expression must be protected. But so too must the duties of citizens be enforced, so that citizens do not infringe on the rights of others. The constitution recognises and enshrines this balance, and requires government to pass laws to ensure this balance.

    Thus the right to freedom of expression is limited by the explicit exclusions of hate speech and incitement in section 16(2), but also by the rights to dignity and good name (the constitutional basis of defamation).

    Your personal freedom of expression is also limited by the law of contract and any contracts into which you enter voluntarily that restrict your freedom. In fact simply working for someone places upon you a duty of good faith which restricts your right to speech insofar as you cannot in good faith tell the public or competitors about certain aspects or plans of the business.

    The right to security also restricts your freedom of expression, in particular where it comes to issues deemed to be in the interest of national security (that is, the security of the country, its people and its economy), where you can be forced to keep information secret.

    If you’re going to define censorship as any rule that restricts what can possibly be put into words, then yes, De Lille is calling for censorship. But then the constitution also requires censorship — of hate speech, or defamatory statements, etc. Is this really censorship?

    Censorship is more commonly understood as a restriction placed on free speech; but free speech is a subset of all speech. Free speech is protected speech, and excludes those things – like hate speech – that are unprotected. In this context De Lille did not directly call for censorship. In fact her concern was directed at the fact that a blogger allegedly engaging in unprotected speech could not be identified.

    Please don’t mistake what I said about limitation of anonymity for a requirement to identify yourself. If you write a letter to the editor of a newspaper (for publication on a letters page) you can remain anonymous by using a pseudonym, but the newspaper will not publish the letter unless you provide your real identity. That way if the newspaper is served a subpoena they can provide your details to the court, and you can be held accountable for your words.

    This is a duty imposed on all persons, natural and juristic, by our constitution. Section 32 provides for access to information, and that any person may be called upon to surrender information that is required by another person to protect their rights.

    If the government is to succeed in its duty to protect rights, it has to be able to enforce duties. The right to life is paired with the duty not to kill. The right to freedom of expression is paired with the duty not to incite violence. In order to enforce or police those duties the government uses Section 36 of the constitution to ensure that you can be held accountable for your actions.

    If we are to ensure that people are being faithful to their duty not to incite violence, or spread hatred of arbitrary groups, or deframe, then their must be a mechanism for those people to be identified after the fact. The alternative is to force everyone to have their speech approved before the fact.

    The former is a restriction of anonymity that ensures that you cannot hide from the *judiciary* (but you can otherwise remain anonymous). The latter is censorship.

    Reply
  6. Twylite avatar
    Twylite

    That's quite a compliment. Thank you 🙂 I apologise for the tone I adopted in my previous comment.

    I agree completely that the right to freedom of expression must be protected. But so too must the duties of citizens be enforced, so that citizens do not infringe on the rights of others. The constitution recognises and enshrines this balance, and requires government to pass laws to ensure this balance.

    Thus the right to freedom of expression is limited by the explicit exclusions of hate speech and incitement in section 16(2), but also by the rights to dignity and good name (the constitutional basis of defamation).

    Your personal freedom of expression is also limited by the law of contract and any contracts into which you enter voluntarily that restrict your freedom. In fact simply working for someone places upon you a duty of good faith which restricts your right to speech insofar as you cannot in good faith tell the public or competitors about certain aspects or plans of the business.

    The right to security also restricts your freedom of expression, in particular where it comes to issues deemed to be in the interest of national security (that is, the security of the country, its people and its economy), where you can be forced to keep information secret.

    If you're going to define censorship as any rule that restricts what can possibly be put into words, then yes, De Lille is calling for censorship. But then the constitution also requires censorship — of hate speech, or defamatory statements, etc. Is this really censorship?

    Censorship is more commonly understood as a restriction placed on free speech; but free speech is a subset of all speech. Free speech is protected speech, and excludes those things – like hate speech – that are unprotected. In this context De Lille did not directly call for censorship. In fact her concern was directed at the fact that a blogger allegedly engaging in unprotected speech could not be identified.

    Please don't mistake what I said about limitation of anonymity for a requirement to identify yourself. If you write a letter to the editor of a newspaper (for publication on a letters page) you can remain anonymous by using a pseudonym, but the newspaper will not publish the letter unless you provide your real identity. That way if the newspaper is served a subpoena they can provide your details to the court, and you can be held accountable for your words.

    This is a duty imposed on all persons, natural and juristic, by our constitution. Section 32 provides for access to information, and that any person may be called upon to surrender information that is required by another person to protect their rights.

    If the government is to succeed in its duty to protect rights, it has to be able to enforce duties. The right to life is paired with the duty not to kill. The right to freedom of expression is paired with the duty not to incite violence. In order to enforce or police those duties the government uses Section 36 of the constitution to ensure that you can be held accountable for your actions.

    If we are to ensure that people are being faithful to their duty not to incite violence, or spread hatred of arbitrary groups, or deframe, then their must be a mechanism for those people to be identified after the fact. The alternative is to force everyone to have their speech approved before the fact.

    The former is a restriction of anonymity that ensures that you cannot hide from the *judiciary* (but you can otherwise remain anonymous). The latter is censorship.

    Reply
  7. SpeakZA « Shayne Robinson – Photojournalist

    […] Paul Jacobson rightly notes: “The right to freedom of expression is limited where it constitutes propaganda for war; […]

    Reply
  8. SpeakZA – Shayne Robinson

    […] Paul Jacobson rightly notes: “The right to freedom of expression is limited where it constitutes propaganda for war; […]

    Reply

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