Sunday, January 16, 2022

UB law academic criticizes High Court for not growing jurisprudence

University of Botswana senior lecturer, Dr Tachilisa Balule, has criticised the High Court for failing to define what information reported in the media constitutes public interest and the relevant factors to be followed in the determination of the issue.

Making a presentation on balancing media freedom and the right to privacy, Balule referred to a case in which The Voice newspaper was sued by one Gorata Esterhiuzen for exposing her naked pictures after she was caught by her estranged husband with her boyfriend.

Balule accused the trial court of failing to give guidance on what would make a publication of public interest and the relevant factors that would be considered on the determination of the issue.
He said the High Court had an opportunity in this case to make a significant contribution towards the building of case law which can be used to guide the media in cases that involve potential conflict between freedom of expression and privacy.

Balule said the court failed to live up to its expectation.

“Although the newspaper had pleaded that the publication of the picture was in the public interest, the court rejected the plea but failed to give guidance on what will make a publication of public interest and the relevant factors to be considered in the determination of the issue,” he said.

The UB academic said public interest is a vague concept that has no precise definition; therefore it is important for the courts to give guidance on the relevant factors for assessing whether or not a publication will be in the public interest.

He said courts in other countries have taken up the challenge and given guidance on what matters constitute public interest.

“The failure by the High Court in the Esterhiuzen case to give guidance on what publications will be in the public interest, is in the view of the presenter, a missed opportunity and regrettable,” he stressed.

The High Court in the Esterhiuzen case said, “It is clearly not in the public interest to publish a picture of an unclothed woman without her consent even if she may have violated the current society’s norms.”

Balule criticised this statement saying it seems to suggest that under no circumstances may the media publish a picture of a naked woman without her consent and then later seek to justify the publication on the basis that it was in the public interest.

“If this is the case, then it is submitted that it will be an unjustifiable restriction on the media’s freedom of expression. The media’s right to freedom of expression includes the publication of photographs,” he said.

Balule said it is not for the court to substitute its own views for those of the media as to what techniques of reporting should be adopted in a particular case.

“Media freedom is not only applicable to information and ideas that are favourably received, but also to those that offend shock or disturb the public or a section of the public. Such are demands of pluralism, tolerance and broadmindness without which there is no democratic society,” he said.
Balule said any blanket ban on the publication of pictures of a naked woman as held by the High Court will be arbitrarily or excessively invade the enjoyment of media freedom.

“There may be cases where publication of a woman’s naked pictures may contribute to a debate of general interest or where the prior conduct of a woman may justify the publication of her naked pictures,” he said.

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