A new Bill working its way through the South African Parliament has the potential to dramatically alter the freedom of speech environment in the country. The General Intelligence Laws Amendment Bill (Gilab) threatens to introduce security vetting of individuals and institutions ‘of national security interest’ and creates a bulk surveillance regime with almost no safeguards. Its requirement of vetting for those that access national ‘key points’ – which includes the national broadcaster – is also a clear threat to the independence of the media.

This trend towards limiting the right to freedom of expression is, unfortunately, not a uniquely South African one. A recent report from the Future of Free Speech project analysing 22 of the world’s open democracies illustrates that, around the world, action taken to restrict free speech far outweighs action which seeks to protect it.

The report found that the stated need to protect national security, national cohesion and public safety was the most common justification for limiting expression. In Denmark, there were nine instances of this being used; in Sweden and Australia, three. Gilab is the most significant new South African legislation to add to this list.

However, Gilab is only one of many recently introduced laws in South Africa that will have the effect of limiting the constitutionally protected rights to freedom of expression and access to information.

What makes it difficult in democracies is that these laws are generally not explicit that the limitation of free speech is their purpose, and they are enacted for other, legitimate, objectives.

For example, the Protection of Personal Information Act has the laudable goal of protecting individuals’ privacy, but its implementation means that access to information is severely constrained. The Cybercrimes Act seeks to ensure online safety, but it may work to limit journalists’ access to leaked information. The preamble to the Prevention and Combatting of Hate Crimes and Hate Speech Bill explains that the law forms part of the country’s commitment to combatting racism and intolerance, but it criminalises speech based on a broad understanding of hate speech, placing what is likely an unconstitutional limit on the right to freedom of expression.

The key question is how to find the balance between the important goals of, for instance, national security and tolerance, and everyone’s right to freedom of expression.

The report does highlight actions undertaken to protect speech. Around the world, many of these have occurred through the courts.

This is an area where South Africa is one of the leading countries under analysis, with the report describing the Constitutional Court as a ‘sophisticated and influential supreme court on expression matters’.

The strength of the South Africa courts in protecting freedom of expression was demonstrated last year in three cases involving the media and SLAPP suits. SLAPP suits are ‘strategic lawsuits against public participation’. This is a term that has gained traction in the United States and Europe and refers to powerful individuals bringing cases – traditionally defamation lawsuits – against journalists or activists who are seeking to expose them.

The South African Constitutional Court accepted the existence of SLAPP suits in South African law in 2022, when it held that environmental activists could raise it as a defence as they faced numerous defamation cases brought by Australian mining companies.

What was interesting about the cases last year was that three different high court judges extended the concept of SLAPPs beyond just defamation cases.

In the case brought by journalist Karyn Maugham against former President Jacob Zuma’s private prosecution of her, the KwaZulu Natal High Court said that private prosecutions can be used as an insidious way of attempting to silence individuals. It stressed the particularly gendered nature of Maugham’s experience, highlighting the abuse she received from Zuma supporters online.

The Johannesburg High Court described the obtaining of a secret order to compel amaBhungane Centre for Investigative Journalism to ‘return’ documents the journalists had received through a source and to cease publishing stories based on those documents as ‘an egregious abuse of process’.

The same court dismissed the application by businessmen to prevent a specific media house from using the term ‘Alex Mafia’ in reference to them, explaining that the order was ‘an abusive attempt by two politically-connected businessmen to gag a target newsroom’.

Although the courts have prevented the full effects of the SLAPP cases being felt in these three cases, it is not enough. Merely having to defend such cases takes a financial and emotional toll on activists and journalists.

Civil society groups, led by the Centre for Applied Legal Studies, have put together a draft Model anti-SLAPP law for South Africa. As SLAPP suits often take the form of ‘David vs Goliath’ legal processes these laws can be a powerful tool to give effect to the right to freedom of expression of those with less financial muscle. The South African draft contributes to a wider trend of similar laws that exist in the US and Canada and have been proposed in the UK and the European Union.

Although the right to freedom of expression is often seen as a negative right – one the state simply has to not infringe upon – decisive action often needs to be taken in favour of freedom of speech. Adopting an anti-SLAPP law would send a strong message that a state values the right to freedom of expression and takes seriously its obligation to promote the enjoyment of that right.

The Future of Free Speech report covered the period 2015 to 2022 and demonstrated a clear upward trend in restricting speech across the countries surveyed. What is particularly concerning about 2022 is the large gap between actions which restrict and those which protect speech.

South Africa is one of at least 60 countries holding elections in 2024. The volatility surrounding elections threatens to increase the recession in freedom of speech identified in the report.

We have also seen an increasingly hostile global free speech environment in the context of the Israel-Gaza war.

This year may well be a watershed for South Africa and other democraciesin determining where the balance falls between speech restrictive and speech protective activity.

Jacob Mchangama is the founder and executive director of the Danish thinktank Justitia, where he directs the Future of Free Speech Project.

Caroline James is the advocacy coordinator at the amaBhungane Centre for Investigative Journalism.

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