Media and the law: defamation
Vrye Weekblad newspaper was closed down in February 1994 after apartheid police general Lothar Neethling won a defamation case against the newspaper on appeal.
Editor Max du Preez – who relaunched the legendary title as a digital paper in 2019 – told the Truth and Reconciliation Commission (TRC) in September 1997 that Neethling ‘should be charged with multiple murder, perjury and fraud’ for his part in developing poison, and for his defamation case against the newspaper, which had forced it to close.
SAPA wrote how Du Preez had ‘likened Neethling to Nazi geneticist Dr Josef Mengele because he experimented with poison to be used by the security branch to kill anti-apartheid activists’.
Speaking at the TRC’s special hearing into the role of the media during apartheid, Du Preez defended his words. He ‘said it would be hard for mainstream newspapers to regain their credibility after failing to report on apartheid-era atrocities’.
‘Neethling sued Vrye Weekblad for R1 million after it published former Vlakplaas commander Dirk Coetzee’s statement that Neethling had provided him and others with poison to drug or kill ANC activists. (Vlakplaas was a security police base outside Pretoria.)
‘In the Rand Supreme Court, Judge Johan Kriegler accepted Coetzee’s version and found Neethling an unreliable witness, and dismissed the case. “But the idea that a respected citizen and member of the Akademie vir Wetenskap en Kuns could be a killer and a liar was simply too much for the judges of the Appeal Court.
‘ “Vrye Weekblad was ordered to pay Neethling’s costs and R90 000 for the defamation,’ Du Preez said”.’
The case dragged on for five years and legal costs for both sides came to to more than R2 million. “The decision by the Appeal Court was one of the blackest moments in our judicial history.”
Du Preez said there was absolute proof from several sources that Neethling lied to the court. Instead, ‘Vrye Weekblad was closed because of Lothar Neethling’s perjury’.
In 1998, the South African high court, in what is known as the ‘Bogoshi case’, overturned decades of defamation case law on the grounds that this contradicted the country’s bill of rights.
South African journalists no longer needed to prove absolute truth as a defence in defamation cases against them, just that they took reasonable steps to this end while researching the story. The decision represented an unprecedented acknowledgment by the highest common law court of the land of the importance of freedom of expression.
The background is that City Press published a series of articles alleging misconduct on the part of Nthedi Bogoshi, an attorney in South Africa. As a result, Bogoshi sued National Media, then the owner of the newspaper, for defamation.
‘The Supreme Court of Appeal (SCA) held that the media can raise a defence of “reasonable publication” in defamation cases and that, on consideration of the specific circumstances of the case, a court can find that the publication of defamatory statements was not unlawful.
‘In this way the court developed the common law and introduced a ‘reasonableness defence’ into South African defamation law.’
Such was the interest in this case, internationally, that the Global Freedom of Expression initiative at Columbia University in New York still provides a case summary and outcome on its website, which can be read here.
‘The court said that National Media’s defence was novel in that it challenged the unlawfulness and not the fault element of defamation by arguing that the publication was neither reckless or negligent and there was no knowledge of the falsity of the statements.
‘The court reasoned that it was appropriate to follow the “reasonable conduct” approach so that common law and the newly introduced constitutional protection for freedom of expression provided for a defence available to the media, namely that the publication of defamatory statements could, in the circumstances, be reasonable and therefore not unlawful.’
While recognising the importance of protecting reputation, the SCA unanimously held that:
‘Freedom of expression is equally important.
‘Professor van der Westhuizen (in Van Wyk et al: Rights and Constitutionalism: The New South African Legal Order) describes it as essential in any attempt to build a democratic social and political order.
‘Elsewhere it has been referred to as “the matrix, the indispensable condition of nearly every other form of freedom” (Palko v State of Connecticut), and in the majority judgment of the European Court of Human Rights in Handyside v United Kingdom, it was said that freedom of expression constitutes one of the essential foundations of a democratic society and is one of the basic conditions for its progress and the development of man.’
The Committee to Protect Journalists (CPJ) gave the background: ‘Although South Africa’s … Constitution upholds the right to freedom of expression, the common law has continued to be dominated by appellate court decisions requiring journalists to prove the truth of their material.’
‘These rulings complemented the apartheid government’s censorship laws by restricting reporting on emergency legislation, police actions, government security actions, and banned organisations like the ANC …
‘The generally conservative appeals court went out of its way to rebut earlier contradictory decisions in order to reconcile common law with the more liberal Constitution.’
The CPJ noted that the court stressed that the private citizen’s rights to privacy and dignity took precedence over the right of freedom of expression, but that journalists would now face libel actions armed with ‘Bogoshi’ and the Constitution.
‘The ruling also marked the first time that the SCA acknowledged that the media have a duty to provide information that is in the public interest.’
Judge Johan Hefer’s opinion stated:
We must not forget that it is the right, and indeed a vital function, of the press to make available to the community information and criticism about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion
The impacts were immense.
Media law expert Dario Milo, partner at Webber Wentzel Attorneys and visiting associate professor at Wits University, explained in a speech about press freedom in 2012 how the law of defamation remained significant.
He noted ‘three major developments’ which were ‘profoundly protective of the media’ after 2010.
‘First, the Constitutional Court reinvigorated the defence of honest or fair comment in the case of The Citizen v McBride. Even though the court described some of The Citizen’s commentary on whether Robert McBride was fit for public office as “vengeful and distasteful”, the court confirmed that criticism is protected “even if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly held opinion, without malice, on a matter of public interest on facts that are true”.
‘This entitled the newspaper to complain about McBride even in terms that were “abrasive, challenging and confrontational”.
‘The second major advance … [was] the approach the courts … adopted to prior restraints, or interdicts to stifle publication. Last year, the City Press succeeded in the South Gauteng High Court in opposing an interdict brought by Julius Malema concerning payments into his now notorious Ratanang trust, allegedly to compensate him for facilitating tenders.
‘But the more important case on prior restraints is now the Constitutional Court’s decision handed down just three weeks ago today in Print Media SA and SANEF v Minister of Home Affairs. That case was not about defamation but concerned prior restraint on publications containing certain forms of sexual conduct.
‘Under the Films and Publications Act, these types of publications would have to be submitted for classification before they could be published. But the ripple effects of this judgment will extend far beyond the facts of the case … because … the Court effectively adopted an approach to free speech of “publish and be damned”, rather than the prior restraint approach … which severely undermined freedom of expression.
Justice Skweyiya for the Court endorsed the English law principle that ‘prior restraint on publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be awarded where there is a substantial risk of grave injustice’
The third defamation decision to which Milo referred was ‘an aspect of the SCA’s ruling in Media 24 v SA Taxi’.
‘This case clarified that where a plaintiff sues for what lawyers call “special damages” as a result of a defamatory publication, additional requirements must be met.
‘ “Special damages”, for the uninitiated, are patrimonial losses such as loss of profits. The prospect of being sued by, say, a multinational, for millions in loss of profits must surely create a chilling effect on freedom of expression, particularly for financial journalists.
‘What the court confirmed in the SA Taxi case is that if you want to sue for these kind of damages, you have to prove that the publication was false and you probably have to even go further and prove knowledge by the publisher of falsity.’
Milo noted how the SA Taxi case mirrored the requirements for public officials suing for defamation adopted by the US Supreme Court in its famous New York Times v Sullivan decision, ‘a case widely regarded as the high water mark for freedom of expression, and one that our courts have steadfastly refused to adopt in other contexts’.
‘The effect of the decision is journalists who act in good faith and are not reckless in their investigation need not fear bankrupting their employers and themselves in a claim for lost profits. The SA Taxi decision radically ameliorates the tendency to self-censor for fear of being sued for ruinous amounts of damages.
‘These three cases illustrate how our courts have intervened in crucial respects to cement an approach in defamation law which prioritises freedom of expression over reputation in certain contexts.
These developments are generally supportive of an approach in our defamation law which marks out protected territory to criticise public officials and others who wield public power. Those in power should not readily turn to defamation or dignity law to seek to stifle criticism of their official conduct
Read Milo’s whole speech here.
There is now a world of legislation awaiting the subject of defamation from another site altogether: online publishing.
Desan Iyer, Associate Professor, Department of Private Law, and Deputy Dean, Teaching and Learning, Faculty of Commerce, Administration and Law at the University of Zululand, says ‘the ability and opportunity to express oneself freely at the click of a button has resulted in an increase in online defamation cases worldwide as well as in South Africa’.
‘Posting comments about oneself and others comes with a degree of responsibility but many users fail to exercise some restraint when making comments about others.
Balancing the right of freedom of expression with what the broader society deems acceptable or unacceptable lies at the root of the problem … and it appears that a lack of public awareness and general knowledge surrounding such cases has created an upsurge in online defamation cases
‘In addition, South Africa appears to lack a clear legislative framework that provides clear guidelines in dealing with online defamation cases.’
Defamation law is frequently revisited, with the most recent update in April 2024 when President Cyril Ramaphosa signed into law a Bill that abolishes criminal defamation. He urged authorities to reform other problematic laws that threaten press freedom in the country.
It’s an important update. The Judicial Matters Amendment Act provision repealing the common law relating to the crime of defamation brings South Africa in line with Zimbabwe and Lesotho. The CPJ noted that a number of other Southern African Development Community (SADC) countries continue to use criminal defamation against journalists. These include Angola and the Democratic Republic of Congo.
‘South Africa’s Parliament voted to abolish the common law crime of defamation, which is based on Roman Dutch Law and court precedents, on 6 December 2023, after decades of advocacy by the press, media lawyers and civil society activists who argued that there were other remedies that did not involve prosecution or jail, such as civil defamation lawsuits for aggrieved parties who believed their reputations were impugned,’ said the CPJ in Lusaka.
- This article was compiled by Janet Smith, adjudicator at the Press Council
