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South Africa High Court rules in favor of BDS South Africa billboard

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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).

annie
About Annie Robbins

Annie Robbins is Editor at Large for Mondoweiss, a human rights activist and a ceramic artist. She lives in the SF bay area. Follow her on Twitter @anniefofani

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19 Responses

  1. pabelmont
    pabelmont
    September 17, 2014, 2:53 pm

    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.

  2. just
    just
    September 17, 2014, 3:56 pm

    Hurrah BDS- SA!

    Thank you Judge!

  3. nettee
    nettee
    September 17, 2014, 4:02 pm

    My home town!

    All I can say is AMANDLA(power in Xhosa)!

    So very proud.

    BDS NOW

  4. Kay24
    Kay24
    September 17, 2014, 5:51 pm

    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.

    • jon s
      jon s
      September 18, 2014, 1:52 am

      The map can have an impact on people who don’t realize that it’s false and misleading.

      • annie
        annie
        September 18, 2014, 5:12 am

        jon, did you mean to post that on this thread? http://mondoweiss.net/2014/09/denies-theres-occupation

        because your comment could have an impact on people who don’t realize you’re lying it’s false and misleading.

        btw, i’m curious what you thought of assouline’s comment referencing Israel’s largest land grab in 30 year. do you also think it’s merely “an area of vacant land the state declared was state land” ? – See more at: http://mondoweiss.net/2014/09/operative-philippe-assouline#sthash.hJMU2gzi.dpuf and are you planning on claiming it’s false and misleading to claim it’s part of palestinian occupied territory that israel has stolen?

      • Kay24
        Kay24
        September 18, 2014, 7:14 am

        Aw, you presume that the world is wrong and cannot do the math eh? Thousands and thousands of illegal structures, condemned by the entire world, including Israel’s enablers the US and the UK, and you expect us to believe they are all built in the sky. Lame.

  5. American
    American
    September 17, 2014, 9:45 pm

    Good!

    BDS 1 – Israel 0

    • jon s
      jon s
      September 19, 2014, 2:38 am

      Annie, As you should know by now , I support a two-state solution, and I’m vehemently opposed to the settlements. The Netanyahu government’s recent land-grab is a slap in the face of President Obama, Sec. Kerry, and the rest of Israel’s supporters. All the settlements are obstacles to peace.

      The maps are still false and misleading.

      • amigo
        amigo
        September 21, 2014, 8:02 am

        “The maps are still false and misleading.” jon s

        jon s , you will need to be more explicit.Just claiming the maps are misleading is misleading.

        So ante up with some reasons why you think they are misleading.

        Otherwise you are just waffling.

  6. American
    American
    September 17, 2014, 10:08 pm

    Here’s a interesting story I have been following .
    Maybe the failed Sotheby’s sale of a Israeli Diamond was influenced by BDS or maybe it wasnt.
    But this is the kind of BDS directed at the big Zios that could really hurt them.

    First some background:

    Israel’s richest man and Israeli diamond vulture Beny Steinmetz— put up a pink diamond for sale with Sotheby’s. Beny is also a mafia style/Mossad connected plunderer of African nations ore mines—-also a financier of a blood loving IDF unit —-also now under investigation by the US Justice Dept. and four other countries for fraud and corruption—also raided and tossed by the Swiss police.—also found by his latest plunder victim, the nation of Guinea to be guilty of fraud and corruption in the purchase of a ore mine—also ran to the United States of Israel where he hopes politics can keep him out of jail and hired fellow tribesman, former Senator Lieberman and Louis Freeh to represent him.

    Obviously some would like to think BDS screwed the pink diamond sale at Sotheby’s.
    But whether it really did or not, Sotheby’s has had to attach a new ‘risk factor’ report to its annual report about ‘third parties’ it is associated with—like Steinmetz.

    $83 million diamond default: Sotheby’s and Israeli war crimes
    Tuesday, 08 April 2014 12:17

    https://www.middleeastmonitor.com/articles/americas/10775-83-million-diamond-default-sothebys-and-israeli-war-crimes

    snips…

    ‘’Last November, amid a fanfare of international publicity, Sotheby’s achieved a world record $83 million for a pink diamond auctioned in Geneva. Four months later, on February 27, Sotheby’s disclosed that they were forced to take the diamond, they then valued at $73 million, into their inventory when the consortium of investors led by Isaac Wolf, a New York diamond cutter, defaulted.
    There is a lot about this story that doesn’t add up; key questions remain unanswered leading to the suspicion of a cover-up.

    A brief, but significant new “Risk Factor” included in Sotheby’s Form 10-K Annual Report on February 27, 2014, may offer a clue to this turn of events. It warns: “Sotheby’s could be exposed to reputational harm as a result of wrongful actions by certain third parties. Sotheby’s is involved in various business arrangements and ventures with unaffiliated third parties. Wrongful actions by such parties could harm Sotheby’s brand and reputation.”

    Sotheby’s has not explained why they felt it necessary to include this previously unreported risk factor.

    According to numerous media reports Sotheby’s claimed the buyer of the pink diamond “couldn’t pay and defaulted”. Isaac Wolf has not given any interviews or responded publicly since the news broke at the end of February.

    When asked by JCK magazine why the diamond wasn’t sold to one of three under bidders, Sotheby’s “declined to comment”.

    Diamonds that are associated with gross human rights violations would not be a good “hedge against inflation and devaluation of currencies” which is what the investors sought. Wolf described the diamond, originally known as the Steinmetz Pink, as “a fantastic hedge”.

    It is likely that the inclusion of the previously unreported risk factor in Sotheby’s Securities and Exchange Commission (SEC) Form 10-K filing was spurred by information published in 2013 and detailed…………

    http://www.newyorker.com/magazine/2013/07/08/buried-secrets

    And how he is being ‘persecuted’ wherever he goes when he just an innocent businessman:
    http://www.bloomberg.com/news/2013-09-11/billionaire-steinmetz-s-home-said-to-be-raided-by-swiss-police.html

    Geneva home of Beny Steinmetz, the billionaire natural-resources investor who is Israel’s richest person, was raided by Swiss police,

    And his hiring of fellow US toadies to try and save his bacon:
    http://www.businessweek.com/news/2014-09-11/steinmetz-trust-said-to-hire-lieberman-ex-fbi-chief-for-probe

    Steinmetz Trust Said to Hire Lieberman, Ex-FBI Head Louis Freeh on Probe

    But the IDF supporting diamond king has had a reversal of fortune even if his diamond didn’t get BDS’ed. He lost his ore mine–Guinea took it back– and Rio Tinto, one of the worlds 2 largest miners has secured the mining rights on a twenty-billion-dollar “investment” with Guinea at last getting their rightful share of the profits and with guess who as the partner with Rio?—-China!

    http://www.newyorker.com/news/news-desk/two-mining-behemoths-battle-an-israeli-billionaire

    Now I guess we wait to see if Beny can stay out of jail. One thing for sure he’s now a ‘untouchable’ as far being able to plunder any more poor countries or get deal with the big mining corps. Vale, the first mining company he tied in on his corruptions said…..”“Vale did what it had to do, and at the time there was nothing to discredit Beny,” he said.
    But he added, more colorfully, “A guy can marry a former hooker and only discover years later that his wife used to be a prostitute.”

  7. Talkback
    Talkback
    September 18, 2014, 8:54 am

    I still find the first picture in the series of four racist. All of it should be green. The status of the land is not different (white colour), only because it is PRIVATELY owned by Jews.

    • eGuard
      eGuard
      September 19, 2014, 8:05 am

      racist … because it is [only] PRIVATELY owned by Jews.

      Zionist racism did not start in 1948. “Jewish land” was the argument, “the land of Israel”.

    • jon s
      jon s
      September 19, 2014, 10:36 am

      Four? I see three maps.

      Annie, could you post a photo of the billboard where the maps and text can be seen clearly?

      • lonely rico
        lonely rico
        September 21, 2014, 1:24 pm

        where the maps and text can be seen clearly?

        http://palestineawarenesscoalition.wordpress.com/the-maps/

        Including – “The Historical Context of the Palestine Maps: Fact and Fiction”

      • jon s
        jon s
        September 22, 2014, 1:34 am

        Lonely rico,
        Thanks. The maps in your link include one which isn’t on the billboard.
        In any case they are, as I said , false and misleading.

  8. lonely rico
    lonely rico
    September 22, 2014, 1:58 pm

    @ jon s

    In any case they are, as I said , false and misleading.

    Yes you did say so, but as amigo pointed out –

    you will need to be more explicit … some reasons why you think they are misleading.
    Otherwise you are just waffling.

    Now jon s, you have a second chance to show that you weren’t waffling, or worse !

  9. jon s
    jon s
    September 23, 2014, 5:50 am

    lonely rico,
    In brief:
    1. In the first map, there should be three categories:
    a. Land owned by Jews (privately or collectively).
    b. Land owned by Palestinians.
    c. State land.
    The map lumps together Palestinian land and state land, though state land, by definition , is supposed to be used by the state for the benefit of all citizens. The purpose of the map here is to exaggerate the land lost by the Palestinians.
    2.The second map is almost accurate (and doesn’t appear on the billboard). It shows the borders of the two states recommended in the UN partition plan. Why “almost”?
    a. The map ignores the proposed internationalization of Jerusalem. It looks like Jerusalem is in the Palestinian state.
    b.The UN plan didn’t determine the names of the two states. It just recommended a “Jewish State” and an “Arab State”.
    3.The third map is totally misleading, ignoring the fact that the West Bank and Gaza were under Jordanian and Egyptian rule, respectively. According to the map, it looks like the WB was part of a Palestinian state.
    4.The fourth map erases the “green line ” and, again, no designation of state land, no mention of land owned by Palestinian citizens of Israel.

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