Censorship, or a victory in the fight against Aids?
The Treatment Action Committee recently won an interim court order stopping vitamin peddlers and Aids dissidents at the Rath Health Foundation from saying that the TAC was funded by drug companies to promote their 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?
The Media Institute of Southern Africa expressed their “alarm” at this “unacceptable judicial censorship. It said the effect of the interdict, granted by a full bench on March 3, was “no different” to others imposed by the South African judiciary preventing the publication of the Mohammed cartoons and information about the Oilgate scandal.
“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.”
The statement said TAC had “another more appropriate remedy” to deal with Rath, and that was to sue him for defamation.
Similiarly, Robert Brand of Rhodes University wrote a newspaper letter suggesting that this form of pre-publication censorship was not an appropriate way to fight Rath.
They were lone voices, unlike other recent cases (such as the Mohammed cartoons or the Oilgate case) when the courts exercised the power of pre-censorship and caused an outcry among censorship activists.
The question raised is whether the Rath case is the same as these other cases. We all accept, I believe, that in our constitutional democracy, pre-publication censorship can only be used 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? A fascinating case.
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 a first shot in this particular battle, and another 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 embarrasing the 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 this 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? - Anton Harber
April 3rd, 2006 at 9:52 am
Thank you for making this point.
As a result of the past South African journalists seem very susceptible to advocacy journalism for good causes and can be blinded in the process.
April 17th, 2006 at 1:42 am
I was driving down the road just the other day, when from a side road, a car appeared, ignoring the stop sign, it shot in front of me.
The driver must have got a fright because she stopped. The car was unlicensed, the driver was unlicensed, the car was unroadworthy, the driver was underaged. Had there been an accident the driver would not have been even able to pay for towing the car away.
Had there been an accident , after the lawyers had finished with it, between two and five years would have passed. Same with Rath and the TAC, nothing is going to happen there for the next 3 to 4 years. So should Rath be allowed to say what he likes because slow justice is no justice, or in this case should the dirvier of the vehicle be removed from the road or allowed to continue to be a hazard to all and sundry until the law finally and at long last
does something about it.