Media and the law: SLAPP suits

Strategic Lawsuits Against Public Participation or SLAPP suits refer to powerful individuals bringing cases – traditionally defamation lawsuits – against journalists or activists seeking to expose them.

The AmaBhungane Centre for Investigative Journalism explains it by writing about three cases involving the media and SLAPP suits, noting that the Constitutional Court accepted the existence of such suits in South African law in 2022 when it held that environmental activists could raise it as a defence as they faced numerous defamation cases brought by Australian mining companies.

Read more about that case here.

AmaBhungane says the strength of the South Africa courts in protecting freedom of expression was demonstrated in the three cases, and ‘what was interesting … was that three different high court judges extended the concept of SLAPPs beyond just defamation’.

‘In the case brought by journalist Karyn Maughan against former President Jacob Zuma’s private prosecution of her, the KwaZulu Natal High Court said that private prosecutions can be used as an insidious way of attempting to silence individuals. It stressed the particularly gendered nature of Maughan’s experience, highlighting the abuse she received from Zuma supporters online.’

Read more about that here.

In the second example, the Johannesburg High Court ‘described the obtaining of a secret order to compel [it] to “return” documents [its] journalists had received through a source and to cease publishing stories based on those documents as “an egregious abuse of process” ‘.

This related to the AmaBhungane Moti Files series which led to businessman Zunaid Moti and the Moti Group obtaining a gag order against AmaBhungane, ex parte, meaning the publication did not know about the case, and the order was issued without it being afforded a chance to oppose it.

In addition to the gag order prohibiting publishing articles about the files, AmaBhungane was ordered to return its trove of documents to the group.

Judge Roland Sutherland set aside that order in its entirety, confirming that AmaBhungane was not obligated to ‘return’ the documents. The court also lifted the prohibition on it publishing further articles on the Moti Group based on the documents to which it had access.

Read more about this in news24’s article here and AmaBhungane’s own, here.

The Moti Group responded here.

‘The same court dismissed the application by businessmen to prevent [Media24] from using the term “Alex Mafia” in reference to them.’

News24 reported that the Gauteng High Court in Johannesburg ‘slammed an urgent bid by two of Deputy President Paul Mashatile’s oldest friends to gag Media24 from referring to them [as such] as an “abuse” – and struck it from the roll, with punitive costs.

‘In [her] ruling, Judge Ingrid Opperman said she was “driven to conclude” that the application by Bridgman Sithole and Mike Maile to interdict Media24 from referring to them as members of the so-called “Alex Mafia” – a term that has been in use for 16 years – was “an abusive attempt by two politically-connected businessmen to gag a targeted newsroom”.’

AmaBhungane commented that ‘although the courts have prevented the full effects of the SLAPP cases being felt in these three cases, it is not enough’.

Merely having to defend such cases takes a financial and emotional toll on activists and journalists

The urgency to develop laws around this has led to ‘civil society groups, led by the Centre for Applied Legal Studies (CALS), [to] put together a draft model anti-SLAPP law for South Africa.

‘As SLAPP suits often take the form of “David vs. Goliath” legal processes, these laws can be a powerful tool to give effect to the right to freedom of expression of those with less financial muscle.

‘The South African draft contributes to a wider trend of similar laws that exist in the US and Canada and have been proposed in the UK and the European Union.

‘Although the right to freedom of expression is often seen as a negative right – one the State simply has to not infringe upon – decisive action often needs to be taken in favour of freedom of speech. Adopting an anti-SLAPP law would send a strong message that a state values the right to freedom of expression and takes seriously its obligation to promote the enjoyment of that right.’

Watch this discussion about SLAPP suits, held at the International Journalism Festival in Perugia, Italy, in April 2022, organised in association with Index on Censorship. The panel features Maria Cheresheva (journalist and freedom of speech advocate), Flutura Kusari (legal advisor at the European Centre for Press and Media Freedom), Jessica Ní Mhainín (policy and campaigns manager at Index on Censorship) and Annelie Ostlund (Realtid Media).

Read Index on Censorship’s research project into the impact of SLAPP suits on Europe’s journalists here.

• This post was compiled by Janet Smith, adjudicator at the Press Council