Bad+idea+to+use+courts+to+gag+voices,+Harber,+Business+Day

Business Day, Johannesburg, 15 March 2006
=Bad idea to use courts to gag voices, even quacks=


 * Anton Harber**

THREE times in recent months, the courts have intervened to censor material.

The first two cases — the ban on the publication of the Mohammad cartoons, and the blocking of a Mail & Guardian expose on Oilgate — caused a stir. The third, just last week, went largely ignored.

The Treatment Action Campaign (TAC) won an interim court order stopping vitamin peddlers and AIDS dissidents at the Rath Health Foundation from saying the TAC was funded by western drug companies to promote their antiretroviral (ARV) treatments.

Those concerned about the impact of AIDS and the destructive influence of AIDS dissidents celebrated the TAC court victory. The good guys got one over the bad guys, right?

The Rath Foundation is accused of encouraging people with AIDS to treat themselves with vitamin supplements rather than ARVs, so it is not a bad thing to silence them, right?

I picked up two lone voices of dissent. The Media Institute of Southern Africa (Misa) expressed “alarm” at this “unacceptable judicial censorship”. It said the effect of the interdict was “no different” from the others imposed in recent months that caused such an outcry.

“Though Misa holds no brief for Rath and his questionable allegedly anti-HIV/AIDS conduct, the manner in which he has been restrained from making public statements offends against the principle of free speech and freedom of expression,” Misa said.

The statement said that the TAC had “another more appropriate remedy” to deal with Rath, and that was to sue him for defamation. Similarly, Robert Brand of Rhodes University wrote a newspaper letter suggesting that this form of prepublication censorship was not an appropriate way to fight Rath. The question is whether the Rath case is the same as these other cases.

We all accept, I believe, that in our constitutional democracy, prepublication censorship can be used only in extreme cases, the equivalent of “shouting ‘fire’ in a crowded theatre”. In a South African context, this might arguably apply to language that provoked violence or race hate, for example.

Does it apply to someone who encourages others not to take medication that can keep them alive? Well, the thing is that it is not quite like that. Rath has not been prevented from discouraging ARV use, but has been prevented from saying certain defamatory things about the TAC. The order against him is an interim measure, pending a full defamation case against him by the TAC. It was one shot in a long and bitter war between the TAC (representing those who want to see our government denounce the AIDS dissidents and move faster in providing ARV treatment) and Rath (representing the AIDS dissidents).

The question one has to ask is what is the most effective way of dealing with Rath? Is it by silencing him?

I don’t think so. I think it is by engaging in public battle with him, by exposing him, by embarrassing government for flirting with him (for that is the real source of his power and influence, isn’t it?), by isolating and defeating him in the marketplace of ideas and information.

The TAC is good at this. But the tool they chose to use last week is a blunt one. It is one too often used by those who don’t like what others are saying.

The TAC is perfectly entitled to defend itself against defamation. The law must protect us against false and damaging language. But the law also has to be careful about being used to silence people we don’t like or agree with.

And the fact is that this is something of a side issue. If the law was being used to stop the Rath Foundation peddling fake cures and quack treatments, if it was being used to stop them undermining the drive to deal with AIDS fully and properly, then the law would be put to good use.

But to protect the TAC from an insult or two? Well, that is not really the issue, is it?


 * Harber is Caxton Professor of Journalism and Media Studies at Wits University. To discuss this column, visit www.journalism.co.za and click on The Harbinger.


 * From: http://www.businessday.co.za/articles/article.aspx?ID=BD4A169943**

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