At first, you might not think that freedom of expression is one of the most important freedoms. But, when freedom of expression is paired with the right to free access to information, it helps to make sure that a democracy is safe from abuse of power, and it safeguards many other rights. Freedom of expression is needed for everyone to be treated fairly. It is vital for all of us to be well-informed and have a say in the way our own society runs and is shaped. This includes its creative expression, through the arts.

A glance back to apartheid is a lesson in abuse of power. It shows why freedom of expression is so important. Back then, art and expression of all forms – songs, paintings, cartoons, films, photographs, literature, comics – were often censored or banned. Why? Because they might inform people, or get people to think about things that the government wanted to keep secret or did not like. Under apartheid these were ideas such as equality (e.g. anti-racism, anti-sexism and anti-homophobia), human rights, and expressions of sexuality. The censor board was made up of conservative, racist, Christian whites who decided what we could or could not see.

News in all media was censored so that people did not know the truth about what was happening socially and politically. Examples are the use of torture and death squads against activists fighting for freedom. Journalists (and any other people) were not allowed to get information about a lot of the things government was doing. When they tried to do so they were targeted and victimised by the government.

Today it’s different. Here is what our Constitution says in Section 16:

16. (1) everyone has the right to freedom of expression, which includes

(a) Freedom of press and other media;

(b) Freedom to receive or impart information or ideas;

(c) Freedom of artistic creativity; and

(d) Academic freedom and freedom of scientific research.

Does this mean that you can say or publish or create anything you want? Definitely not. Your right to freedom expression must be balanced against other people’s rights to privacy and dignity. As with all rights, limitations to freedom of expression is allowed. This is even the case in an open and democratic society that aims to encourage, not censor, ideas. Think about our pluralist society of many different races and religions and cultural beliefs, and differing ideas about what is acceptable, moral, right and wrong. Some protection in law is needed.

Here is what the Constitution says:

(2) The Right in subsection (1) does not extend to –

(a) Propaganda for war;

(b) Incitement of imminent violence; or

(c) Advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.

Then we also have the protection of what is known as the ‘Equality Act’. Section 10 includes a ban on ‘hate speech’. It says that no-one can publish something that intends to harm someone else or make people hate each other.

In the story But I Never Meant… Dumi and his schoolmates discover just how one person’s ‘freedom of expression’ can harm other people. The shared image could be seen to have defamed Miss Majola and her boyfriend. This means the children published untrue, bad things that harmed the adults’ reputations. They also harmed their dignity, and in a practical way negatively affected the life of Miss Majola. And today, there is the extra difficulty that digital media can so easily go viral, reaching a huge audience in hours. Consequently we must think even more carefully about what we say and write, particularly online. Sometimes even things that the law allows us to say can still be very hurtful.

Miss Majola’s ability to teach was undermined once the mocking image had been seen by the school. The image was also hurtful to an entire group of people in society: transgender people and transvestites. They have the same rights as all other people, because the Constitution specifically prohibits discrimination based on sex, gender and sexual orientation.

However note that in a democracy it is accepted that public figures or celebrities have to take being made fun of as part of being influential. They put their names out there as public figures and can expect to endure some criticism and jokes. The provincial rugby player Vuyisile Gaba in But I Never Meant… knew and understood this. Cartoonists and comedians use humour to mock and parody celebrities and politicians all the time. Often the humour has a serious purpose, and makes the audience think about the behaviour of the parodied person. Sometimes though, the mocked person may feel strongly enough to take a case to court – you can read about some examples in the next section.

Our legal system acknowledges that the freedom of expression of children (people below 18) is important. Children need space to learn who they are, how to express themselves and to test boundaries without fear. The law is therefore softer when punishing – civilly or criminally – children’s speech. In this case the children were threatened with a civil, not criminal case. Civil convictions mean a fine, not jail.