M&G responds to Chris Moerdyk

I hope I can reassure him.

It is true that the SABC has laid a criminal complaint about the fact that we got hold of the episode, which dealt with political satire, and whether South Africans are ready for it. But we certainly did not steal anything, and the commercial crime unit seems as confused as we are about the complaint. They aren't sure, they told us yesterday, whether the crime of which we are accused is fraud or theft.

Of course it is neither, not on technical legal grounds, or on substantive, evidentiary ones.

I won't get into how we obtained the episode, for obvious reasons, but I am assured by some of the best lawyers in the country that it is impossible to steal an intangible. We have a copy of a digital file. The SABC still has the original.

Copyright

That brings us to the trickier area of copyright, which is Moerdyk's real beef with the Mail & Guardian.

The obvious route for the SABC to go would have been to begin civil proceedings against us: to seek a court order on copyright grounds requiring us to take down the video from our site, and perhaps to sue for damages.

They seem to think they have wrong-footed us by not choosing this option. I can't help but imagine someone up at Fawlty Towers grinning in the manner of a cartoon villain and saying “We could interdict them but ... that's exactly what they'd expect us to do”.

We are of course, delighted to have been spared a long, expensive, night in motion court.

Perhaps it is too much to expect the SABC's lawyers, or indeed Chris Moerdyk, to know that there is precedent both locally and in the British courts for a defence against copyright claims based on the public interest, and that our constitution is a further bulwark for such a defence. As for damages, the most skilled at damaging the finances of the SABC are clearly the managers of the corporation, not the Mail & Guardian.

The decision informed by public interest

Let us be clear about this, we did not post a pirate copy of Wolverine on our website, or even of Egoli. We are dealing with very specific circumstances here.

The SABC, a public institution with a crucial constitutional mandate, funded in part with public money, and answerable to Parliament, twice pulled off the air a programme deemed politically sensitive. It did so without providing remotely plausible reasons, in the middle of an intense national debate about its independence, its finances, and its management.

It is manifestly in the public interest to advance that debate by providing the public with the programme in question, so that we can begin to understand whether the decision had a rational editorial basis (it clearly did not) as well to provide a concrete indication of just how the culture of self-censorship (at best) is undermining the broadcaster's mission.

There are other things to say about how hard it is to enforce censorship in the age of broadband, and about how the sanctity of copyright can be abused by political and commercial powers keen to cover up their failings, but the crisp point is this: we made a decision to post the programme in the circumstances of a national debate on the SABC, informed by the public interest. That isn't vigilantism, Mr Moerdyk, it is journalism. It may be journalism in a new form - you don't get any ink your fingers watching the programme online - but this is a new age. The principle remains the same.

For more:

• SABC vs M&G: will the truth ever come out?