After a months long court battle BDS South Africa (BDS-SA) won a “precedent-setting” freedom of expression court case last Thursday, September 11. In October 2012 BDS-SA along with the Palestine Solidarity Alliance (PSA) purchased advertisements on billboards across South Africa. Not unlike what occurred when the Boston transit authority pulled Ads Against Apartheid’s “One Word” subway ads with no warning, South Africa’s Continental Outdoor Media removed two BDS South Africa ads prior to their contractual expiration date without giving any notice to BDS-SA or the PSA.
At the time, Muhammed Desai, co-ordinator of BDS-SA claimed Continental Media was “pressured by members of the Israeli lobby to remove the advertisement in question,” which Continental denied. However, the Jewish Board of Deputies and the South African Zionist Federation boasted “On contact with the owners of the billboard site, their error was immediately acknowledged and literally within six working hours (not counting the weekend) of the billboard having gone up it was removed from the site.”
In stepped the Legal Resource Center (LRC), one of South Africa’s largest and most prominent public interest and human rights law clinics, an independent, client-based non-profit in Johannesburg who represented BDS-SA pro bono and took Continental and the City of Johannesburg to court arguing the removal of ads violated South African’s constitutional right to freedom of expression because the city’s Advertising Standards Authority (ASA) Code of Conduct, which stipulates no advertising that is “insensitive to the public, or any portion thereof, or to any religious or cultural group”, breached the constitution.
The judge of the South Gauteng High Court in Johannesburg agreed and ruled in favor of BDS South Africa ( pdf full and complete court ruling/judgment), declaring that the removal of the billboards was both “unlawful and unconstitutional” and ordering Continental to re-erect the billboards within 10 days and pay all court costs. The court also ordered the City of Johannesburg to amend their bylaws.
The Legal Resource Center press release:
In the High Court, Gauteng Local Division Johannesburg, on Thursday 11 September, judgment was handed down in Boycott. Divestment. Sanctions. South Africa and Sweetworks Advertising Agency v Continental Outdoor Media (Pty) Ltd, the City of Johannesburg and the Advertising Standards Authority. The judge found the actions of Continental Media unconstitutional and unlawful. As representatives of BDS South Africa and Sweetworks, the LRC welcomes the judgment.
As noted in the previous press release, the matter involves a contractual dispute centred on the right to freedom of expression. The dispute arose when Continental Outdoor Media removed a BDS South Africa billboard advertisement prior to the expiration of the agreed flighting period, without notice or consultation with BDS SA and Sweetworks. Continental contended that it was entitled to remove the billboard as the advert was contentious and controversial and, therefore, not compliant with the rental agreement, the Outdoor Advertising Bylaws if the City of Johannesburg and/or the Advertising Standards Authority Code of Conduct (ASA Code).
The LRC argued that the removal of the billboard was unconstitutional and unlawful as it is in breach of Section 16 of the Constitution which provides for freedom of expression. We also argued that the relevant section of the by-law of the City of Johannesburg, which does not allow advertising that is “insensitive to the public, or any portion thereof, or to any religious or cultural group”, is unconstitutional in that it goes beyond the constitutional limitations of free speech by setting a lower bar than the Constitution allows.
The judge found the removal of the billboards to be unconstitutional and unlawful and ordered Continental Outdoor Media to, within 10 days, reinstate the billboards for an uninterrupted period of 30 days. The judge further found that the relevant advertising by-laws of the City of Johannesburg are unconstitutional and gave the City a year in which to amend them.
From BDS South Africa’s press release:
Members of BDS South Africa would like to thank the legal team headed by Advocate Jason Brickhill and attorneys from the Legal Resources Centre (LRC) who represented BDS South Africa. The Legal Resource Centre is one of South Africa’s largest and most prominent public interest and human rights law clinics. The LRC includes as its leaders notable figures such Advocate Geroge Bizos (lawyer and friend of former President Nelson Mandela), Justice Jody Kollapen (former South African Human Rights Commissioner), Janet Love (former anti-apartheid activist and current South African Human Rights Commissioner) and others. BDS South Africa and the Palestine Solidarity Alliance (PSA) have also received pro bono support from the MLA and several other legal experts, all to whom we are grateful. The Board and staff of BDS South Africa would also like to thank all supporters that attended the court case in solidarity with BDS South Africa and the PSA. Continental Media was represented by Advocate Alan Eyles, Professor Iain Currie and the legal firm Edward Nathan Sonnenbergs (ENS).
Mthunzi Mbuli of BDS South Africa welcomed the court victory saying that: “This court victory is a victory against a major corporation by a people’s organziation. Continental Media was under the impression that they could squash this issue due to us being an activist organization, however, there were wrong. This court victory is also a victory against the SA Jewish Board of Deputies and SA Zionist Federation who form part of the Israeli lobby in this country and who use bullying and intimidating tactics to interfere with Palestine solidarity efforts. This court victory will provide support to media agencies that come under pressure from the Israeli lobby for covering Palestine solidarity events, adverts and others actions.”
This is the second time that BDS South Africa has won a legal matter involving intimidation by the SA Jewish Board of Deputies. Previously in 2011 the SA Jewish Board of Deputies, tried (but failed) to ban a radio advert from being aired on SABC’s 5fm radio station. The advert [ below] featured a message of support for the cultural boycott of Israel by Dave Randall (lead guitarist of the UK music band, Faithless).
Political advertising, whether about upcoming elections or about a review of politically interesting facts (as here), are always “contentious”. Constitutional guarantees of free expression (USA, SA, UK ?, Israel?, elsewhere) are inconsistent with (local) rules forbidding “contentious” matter. Political controversy will often make a group of people uncomfortable.
I think the court here did the right thing in judging the local by-laws (or whatever) unconstitutional, unenforceable, and judging that private (non-governmental) parties were bound with a “negative” duty not to infringe on publicly guaranteed rights and, thus, not to act in consequence of a local rule which was itself unconstitutional.
Hurrah BDS- SA!
Thank you Judge!
My home town!
All I can say is AMANDLA(power in Xhosa)!
So very proud.
BDS NOW
The shrinking map really makes an impact for those not aware of this major scale of land theft by the occupier. I wish we could see many in in the US too. Nothing like an impressive billboard in the land where apartheid was flourishing, once.
Good!
BDS 1 – Israel 0