During this inquiry we considered whether it was appropriate to include clauses on racism and sexism in the Code and we carefully considered the notion of freedom of expression as it applies to broadcasting services. It is worth reflecting on our conclusions here. However, like all rights, Freedom of Expression is subject to limitation under section 36 of the Constitution. The Authority further notes that even unpopular and offensive speech is protected and that any attempt to limit such speech carries also, the potential to limit artistic creativity. In broadcasting, creativity is key and the Authority does not wish a Code of Conduct to play any role in unduly restricting artistic freedom.
Freedom of expression is a condition indispensable to the attainment of all other freedoms.
Whilst in most democratic societies freedom of expression is recognised as being central to democracy, in no country is freedom of expression absolute. Like all rights, freedom of expression is subject to limitation under section 36 of the Constitution. The outcome of disputes turning on the guarantee of freedom of expression will depend upon the value the courts are prepared to place on that freedom and the extent to which they will be inclined to subordinate other rights and interests to free expression. Rights of free expression will have to be weighed up against many other rights, including the right to equality, dignity, privacy, political campaigning, fair trial, economic activity, workplace democracy, property and most significantly the rights of children and women. In the period prior to the transition to democracy, governmental processes neither required nor welcomed the adjuncts of free expression and critical discussion and our country did not treasure at its core a democratic ideal.