Donate to SAFLII and support open access to the law

SAFLII is a vital cog in the broader movement to safeguard democracy in South Africa through open access to the law. SAFLII relies on donations to operate. Make your donation today, before it is too late.

If you are somehow involved in the South African legal scene you will know about SAFLII, the South African Legal Information Institute. To say this organisation provides a valuable service to the South African public is a gross understatement. The service it provides is vital and now SAFLII needs our help to keep it going.

What is SAFLII?

In case you aren’t familiar with SAFLII, it is a non-profit that has been working for years to make open access to legal knowledge and developments a reality. This is how SAFLII describes itself:

The Southern African Legal Information Institute (SAFLII) is an online repository of legal information from South Africa that aims to promote the rule of law and judicial accountability by publishing legal material for open access in line with the objectives of the global Free Access to Law Movement.

SAFLII also hosts legal materials from other countries in the region, which are obtained through partnerships and collaborative efforts with governments, courts, law societies and more recently through linking to other Legal Information Institutes being established in these regions.

If you want to know what happened in a pivotal court case, you go to SAFLII. They curate and publish court cases from South Africa’s superior courts (High Courts up to the Constitutional Court, along with a number of tribunals) as well as a range of journals and other legal reference materials.

You simply can’t have a society based on equal access to the law if you can’t actually access legal information. SAFLII is South Africa’s answer to that and one of the handful organisations that ensure that South Africans have meaningful access to legal developments.

Revolutionising open access to the law

I have been a huge fan of SAFLII and its work for years. My introduction to SAFLII was through a Privacy and Freedom of Information workshop hosted by the Constitutional Court in September 2007.

I have referenced dozens of court cases in my articles about legal news and developments over the years. This was only possible because of the incredible work the SAFLII team has done. Here are a few of the articles that became possible thanks to SAFLII:

  1. What the High Court decided about broadcasting the Oscar Pistorius trial
  2. Isparta Facebook defamation case highlights a fundamental legal question
  3. Johannesburg High Court rules on Facebook defamation
  4. The President, his penis and the Streisand Effect

To lawyers, these cases are professional knowledge. To the general public, these cases are a direct line to insights into the forces that shape South Africa on a daily basis.

Attending a workshop at SAFLII
My first exposure to SAFLII and a Privacy and Freedom of Information workshop in late 2007

Before SAFLII, commercial legal publishers such as LexisNexis and Juta & Company had a lock on legal knowledge. They were the exclusive publishers of court cases, statutes and journals and those invaluable materials were only available through relatively expensive subscriptions.

SAFLII changed that by publishing judgments published by South Africa’s courts and tribunals for free.

Those judgments, alone, made a profound difference. SAFLII’s work meant that citizens could read about the cases that shape the law. It also meant that lawyers and law students could keep up to date on the trends shaping the profession and all aspects of South African law.

Now SAFLII needs our help – Donate!

The organisation launched a fundraising drive a couple months ago. Its operating budget seems to be around R2 million each year. The organisation hasn’t published any information about its progress towards its goal but time is running out.

South Africa can’t afford to lose a resource like this. The law may be a dry abstract to most South Africans but open access to the law is a powerful tool to help build and maintain a democracy.

Donate to SAFLII
Donate to SAFLII today.

We can all make a contribution to keep this vital service alive for another year. Make a donation, whatever you can afford. SAFLII offers three options:

  1. Credit card;
  2. SnapScan; and
  3. EFT.

Donate today, make a difference.

The State Capture Report downloads, analysis and news

Update (2016-11-08): Added a new section titled “Interviews with President Zuma” with embedded audio recordings of interviews conducted by the Public Protector.

The State Capture Report is the culmination of a revealing investigation into various allegations of corruption and irregular actions by prominent politicians and business people. This is the first paragraph of the report’s introduction:

The investigation emanates from complaints lodged against the President by Father S. Mayebe on behalf of the Dominican Order, a group of Catholic Priests, on 18 March 2016 (The First Complainant); Mr. Mmusi Maimane, the leader of the Democratic Alliance and Leader of the Opposition in Parliament on 18 March 2016 (The Second Complainant), in terms of section 4 of the Executive Members’ Ethics Act, 82 of 1998 (EMEA); and a member of the public on 22 April 2016 (The third Complainant), whose name I have withheld.

It was completed in October 2016 by Advocate Thuli Madonsela, then the Public Protector. The report was submitted to the Speaker of Parliament and withheld, partly due to legal challenges to its release by the President and others.

On 2 November 2016, a full bench of the High Court ordered the State Capture Report’s release. The court ordered the Public Protector to release the report on its website which crashed soon after the order was made. The report eventually became available on the website. Below are download links to the two parts of the report.

I have included alternative download links to copies of the report stored on Amazon S3 in case the Public Protector’s site goes down.

The State Capture Report

  1. Report No:6 of 2016/17 on an investigation into alleged improper and unethical conduct by the President and other state functionaries relating to alleged improper relationships and involvement of the Gupta family in the removal and appointment of Ministers and Directors of the State-Owned Enterprises resulting in improper and possibly corrupt award of state contracts and benefits to the Gupta family’s businesses
    1. Official link on the Public Protector’s site
    2. Alternative download link
  2. Annexure A1 Interview between President Zuma and the Public Protector
    1. Official link on the Public Protector’s site
    2. Alternative download link

The Report is also available from SAFLII:

Interviews with President Zuma

eNCA has published audio recordings of the Public Protector’s interviews with President Zuma on its website. The President has lodged a complaint with the Public Protector about this but the interviews are currently available through these players:

Analysis

As you would expect, there has been considerable analysis of the State Capture Report.

Below are some of the links that I came across which seem particularly helpful in understanding the findings of the report and their implications. I may add to this list from time to time so check back for updates.

Interviews and discussions about the State Capture Report

State Capture Report developments

I created a Twitter Moment titled “#StateCapture Links, News and Analysis” to help organize many of the developments I found particularly helpful. This Moment may also be updated over time:

Of course you can also follow the #StateCapture hashtag on Twitter for even more developments and analysis:


Facebook defamation is not necessarily illegal

That the respondent in the latest High Court Facebook defamation case, M v B, was ordered to remove defamatory posts on Facebook isn’t remarkable. What is more interesting about that case is that it reiterates a principle that a court will not step in and proactively block future defamatory posts.

The applicant in this case, M (SAFLII redacts personal information about parties in cases it publishes in certain circumstances), brought an urgent application to the Kwa-Zulu Natal High Court on 9 September 2013 to order his ex-wife, B, to –

  1. “remove all messages as contained in annexure ‘D’ to the applicant’s founding affidavit, from her Facebook page;”
  2. “refrain from posting any defamatory statements about the applicant on her Facebook page;” and
  3. “refrain from in any way making, publishing and/or distributing defamatory statements about the applicant.”

The urgent application was successful and M was granted an interim order which M subsequently sought to have made final. Judge Chetty’s judgment on this was delivered just over a year after the initial application was launched, on 19 September 2014.

Background

Judge Chetty gave the following background to the applications:

[3] It is necessary to sketch the brief history of the matter, and particularly the facts giving rise to the launching of the application. The applicant and the respondent are the biological parents of a minor child, a daughter P born in July 2008. At the time of the launching of the application, the child was five years old. The respondent and the applicant were never married, and at the time of the institution of these proceedings, were no longer in a relationship. P lives with the respondent. In terms of an arrangement between the parties, the applicant has contact with his child every alternate weekend from Friday afternoon until Sunday afternoon. It is not disputed that in accordance with this agreement, the applicant picked up his daughter on the weekend commencing 30 August 2013 and returned her to the respondent on Sunday 1 September 2013.

[4] During the course of this particular weekend the applicant and his daughter visited the house of a friend, and ended up staying over. During the course of the evening, other friends gathered at the house eventually resulting in P sharing a bed with an adult female, who is a pre-primary school teacher, and someone known to her as she had babysat P on previous occasions. The applicant has categorically stated that he has never had a romantic relationship with the teacher concerned. P was safely returned to her mother on the Sunday.

[5] In the week that followed, the applicant received calls from several friends drawing his attention to a posting by the respondent on Facebook, under the heading “DEBATE”. The posting reads as follows:

‘DEBATE: your ex has your daughter (5) for the weekend and is sleeping at a mates house. They all (about six adults) go jolling and your ex’s drunk, 50 yr old girl “friend” ends up sleeping with your daughter cause he doesn’t want his girl “friend” sleeping in a single bed she can share the double bed with his/your daughter! How would you feel?’

[6] It is not in dispute that at the time of this posting the respondent had 592 “Facebook friends”. A number of the respondent’s ‘friends’ responded to her posting and were critical of the behaviour of the applicant. The respondent further contributed towards the debate by making subsequent postings to that set out above. These postings or messages appear as annexure ‘A’ to the applicant’s founding papers. The initial postings resulted in a further debate with the respondent’s brother S[…] B[…], who questioned the aspersions cast by the respondent on the applicant and the teacher with whom P shared a bed. These postings appear as annexure ‘B’ to the applicant’s founding papers.

[7] In light of the postings, which the applicant regarded as defamatory and detrimental to his business reputation, he engaged his attorneys who wrote to the respondent on 4 September 2013 clarifying that during the weekend in which the applicant had access to P, at no time therein was she placed in any danger, nor was her safety compromised in any way. His attorneys then called upon the respondent to remove the offending postings (annexures ‘A’ and ‘B ‘to the founding papers) from her Facebook page by the close of business on 4 September 2013, failing which they threatened litigation.

[8] According to the respondent, she removed the offending postings by 5 September 2013. Accordingly, at the time when the application came before my colleague Nkosi J, the respondent contended in her opposing affidavit that there was no need for the application as she had long since complied with the demand and removed the postings. In support of the submission, the respondent attached an SMS received from the applicant on 5 September 2013 stating:

‘And well done on removing your false Facebook posting – you’ve saved yourself from a lawsuit. Ensure no further defamatory posts are put up or you’ll find yourself in Court!!’

[9] As is evident from the prayers sought in the Notice of Motion, notwithstanding the removal of postings in the form of annexures A and B, the applicant persisted in his application for urgent relief on the basis that the respondent had failed to take down the postings on what is referred to as her Facebook Wall, which the applicant contends “retained a partisan version of the debate”. The postings on the respondent Face Wall appeared as annexure D to the applicant’s founding affidavit. The applicant contended that the contents of annexure ‘D’ defamed him, even though the respondent has deleted the earlier postings on her Facebook page. In order to understand the applicant’s complaint, a perusal of the respondent’s Facebook Wall reflects the contents of active debate taking place between the respondent and her friends. The subject of the debate continues to be the incident relating to the applicant’s care (or neglect) of his daughter over the weekend at the end of August 2013. In particular, the opening message on the applicant’s Facebook Wall is the following:

‘This is my FB page which I can get opinions on matters close to my heart, if you don’t like it then go read someone else’s and defriend me!’

[10] This message was posted in response to earlier messages from the respondent’s brother, S[…] B[…], who it would appear, did not take kindly to the insinuations of neglect aimed at the applicant.

The Court’s decision

These facts are pretty similar to two 2013 Facebook defamation case which I wrote about, H v W and Isparta v Richter and Another. The order directing B to remove defamatory posts from her Facebook Wall was not particularly controversial. There was some discussion about the timing of the application and B’s efforts to remove some defamatory posts but this order was in line with Judge Willis’ judgment in H v W and Acting Judge Hiemstra in Isparta v Richter and Another. After considering arguments from both sides, Judge Chetty found against B:

[20] Other than a denial that the postings were defamatory, the respondent does not make out any argument of the public interest in respect of the statements attributed to the applicant. I am satisfied that the applicant was entitled to approach the Court on an urgent basis at the time that he did. I am accordingly satisfied that the applicant has made out a case for first part of the rule nisi, in terms of the relief sought in prayer 2.1 of the Notice of Motion, to be confirmed.

Facebook_defamation

The Court then moved on to the second part of the matter, namely whether M should be entitled to a final order, essentially, prohibiting B from publishing defamatory comments about M in the future. This may seem like a perfectly reasonable order but it is important to bear in mind that just because a comment is defamatory, doesn’t mean that it is wrongful. As Judge Chetty pointed out –

[24] On the other hand, the respondent submitted that there is no basis at common law for a Court to curtail the respondent in respect of material which is not as yet known to the Court, nor has it been presented or published. As such the Court is asked to speculate on what could constitute a defamatory statement, uttered or published by the respondent against the applicant. It was correctly submitted in my view that even if the statement in the future by the respondent is defamatory of the applicant, it is equally so that not every defamatory statement is per se actionable in that the respondent may have a good defence to its publication. For example, the respondent might be under a legal duty to furnish information about the applicant in connection with an investigation of a crime, or she could be a member of a public body which places on her a social duty to make defamatory statements about the applicant. To this extent, the respondent may make defamatory statements about the applicant in circumstances where they may be a qualified privilege. Obviously it would be necessary to ascertain the nature of the occasion in order to determine whether any privilege attaches to it. The difficulty in granting such an order is evident, albeit in the context of the publication of an article, from the judgement in Roberts v The Critic Ltd & others 1919 WLD 26 at 30–31 where the Court held:

‘I think I have jurisdiction to make an order restraining the publication of a specific statement that is defamatory, but in the present case I am asked to restrain the publication of an article in so far as it is defamatory; if the applicant’s contention is correct this will come to the same thing as restraining any continuation of the article at all, because that contention is that no continuation of the article can be written that is not defamatory… . There is the grave difficulty in the way of granting an interdict restraining the publication of an article which purports to deal with a matter of great public interest, and which I have not before me. It is impossible to say what it will contain, however grave one’s suspicions may be. The respondents specifically state that the continuation will not be libellous, nor will it slander the petitioner; nor will it affect her good name and fair fame. It can only be determined upon the publication of the article if this statement be true. I think it is impossible for me to deal with it now. In the cases I have referred to the defendants insisted on the right to publish the statements complained of. The interdict must therefore be discharged.’

[25] At the same time it has also been held that it is lawful to publish a defamatory statement which is fair comment on facts that are true and in matters of public interest, as well as in circumstances where it is reasonably necessary for and relevant to the defence of one’s character or reputation. Counsel relied on the judgement of Willis J in H v W (supra) para 40 in support of his submission that Courts should not be eager to prohibit or restrict parties in respect of future conduct, of which one can only speculate in the present. The Court held that:

‘Although judges learn to be adept at reading tealeaves, they are seldom good at gazing meaningfully into crystal balls. For this reason, I shall not go so far as “interdicting and restraining the respondent from posting any information pertaining to the applicant on Facebook or any other social media”. I have no way of knowing for certain that there will be no circumstances in the future that may justify publication about the applicant.’

Although judges probably wouldn’t have a difficulty ordering a person not to do something that is clearly and unjustifiably wrongful in the future (that is largely what an interdict is for), the challenge M faced with this part of his application is that a future defamatory statement could well be justifiable and not wrongful. As I pointed out in my post, Judge Willis considered a couple justifications in H v W –

After exploring Twitter briefly, Judge Willis turned to established case law in South Africa including authority for the proposition Roos expressed that a privacy infringement can be justified in a similar way that defamation can be justified and a more recent Supreme Court of Appeal judgment in the 2004 Mthembi-Mahanyele v Mail & Guardian case which, according to Judge Willis –

affirmed the principle that the test for determining whether the words in respect of which there is a
complaint have a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned

The Court, in the Mthembi-Mahanyele case set out the test for defamation as follows (and cited a 1993 case in the then-Appellate Division of Argus Printing and Publishing Co Ltd v Esselen’s Estate) –

The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words … to convey a meaning defamatory of the plaintiff… . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’

Referencing one of the justifications for (or defences to) defamation, namely that the defamatory material be true and to the public benefit or in the public interest, Judge Willis drew an important distinction that is worth bearing in mind –

A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The courts do not pander to prurience.

The Court moved on to explore another justification, fair comment. In order to qualify as “fair comment” –

the comment “must be based on facts expressly stated or clearly indicated and admitted or proved to be true”

The person relying on this justification must prove that the comment is, indeed, fair comment and “malice or improper motive” will defeat this justification or defence, regardless of its demonstrably factual nature. In this particular case, the Court found that W acted maliciously and she was unable to prevail with this defence.

Because defamation can be justified in appropriate circumstances and because judges can’t predict when defamatory statements will be justifiable in a particular context, proactively blocking defamatory Facebook posts is inherently problematic. Judge Chetty summarised the point:

As set out earlier this argument must fail because it is clear that not every defamatory statement made by the respondent about the applicant would be actionable.

What the High Court decided about broadcasting the Oscar Pistorius trial

As you know, the Pretoria High Court granted the media permission to broadcast the upcoming Oscar Pistorius trial but don’t expect to see TV footage of Pistorius or his witnesses giving evidence. Judge President Mlambo has imposed a number of restrictions on the coverage you can expect in the coming weeks. The reasons for these restrictions stem from the considerations Judge Mlambo took into account and how the judge balanced a number of competing rights.

For one thing, you probably won’t see any video of Oscar Pistorius’ or his witnesses’ testimony (although you may hear it on radio). You won’t see close-ups either. This decision is more about upholding rights than it is about the hype.

As you know, the Pretoria High Court granted the media permission to broadcast the upcoming Oscar Pistorius trial but don’t expect to see TV footage of Pistorius or his witnesses giving evidence. Judge President Mlambo has imposed a number of restrictions on the coverage you can expect in the coming weeks. The reasons for these restrictions stem from the considerations Judge Mlambo took into account and how the judge balanced a number of competing rights.

Weighing up competing rights

The various considerations and rights are summarised in the opening paragraph of the judgment:

The electronic, broadcast and print media have approached this Court to grant them permission to broadcast the entire criminal proceedings in the matter of The State vs Oscar Leonard Pistorius (Pistorius). They seek permission to do this through audio, audio-visual and photographic means. The matter brings into sharp focus the interface between the functioning of the criminal justice system on the one hand and the quest by the media and press to participate in that system on the other hand. This interface finds expression in a number of critical constitutional rights that are seemingly on a collision course with one another. These are the rights of an accused person and the prosecution to a fair trial on the one hand and the freedom of expression rights of the media as well as the open justice principle.

Judge Mlambo highlighted the media’s importance in a democratic society and quoted a number of court decisions dealing with the freedom of the press in the context of court proceedings. In the case of Khumalo and Others v Holomisa, the Constitutional Court said the following:

The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected.

Broadcasting the trial (and allowing for broader coverage of any trial) is closely linked to not only freedom of expression but also the principle of open justice. As Judge Mlambo pointed out –

Our Constitution is underpinned by a number of values and for purposes of this case I refer to openness and accountability. In this regard it is also important to take cognizance of the fact that sections 34 and 35(3)C) make it very clear that even criminal proceedings in this country are to be public. The basis for this is that courts of law exercise public power over citizens and for this it is important that proceedings be open as this encourages public understanding as well as accountability.

The Judge went on to quote from the case of S v Mamabolo in which the Constitutional Court said the following:

Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticize, applaud or castigate the conduct of their courts. And, ultimately, such free and frank debate about judicial proceedings serves more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the important attributes prescribed for the judiciary by the Constitution

That said, this isn’t just about the media’s interests. Pistorius’ legal team argued that broadcasting the trial would compromise his right to a fair trial. He went as far as to argue that if the trial is broadcast, he would be denied a fair trial. His concerns were summed up as follows:

Pistorius contends that the live broadcasting of his criminal trial, through audio (radio), audio-visual (television) and still photographic means, will infringe his right to a fair trial. His view is that the mere knowledge of the presence of audio visual equipment, especially cameras, will inhibit him as an individual as well as his witnesses when they give evidence. He has also asserted that his Counsel may also be inhibited in the questioning of witnesses and the presentation of his case. He further is of the view that covering his trial as is sought by the applicants will enable witnesses still to testify to fabricate and adapt their evidence based on their knowledge of what other witnesses have testified. In his view the requested broadcasting of his trial will have a direct bearing on the fairness of the trial and contends that should the relief be granted he will most certainly not enjoy a fair trial.

The Judge accepted that Pistorius’ concerns are valid and set about balancing his right to a fair trial with the media’s right to freedom of expression and the principle of open justice. This process doesn’t involve placing more value in one or another right over the others but rather as the Court in Midi Television (Proprietary) Limited v Director of Public Prosecutions proposed –

Where constitutional rights themselves have the potential to be mutually limiting – in that the full enjoyment of one necessarily curtails the full enjoyment of another and vice versa – a court must necessarily reconcile them. They cannot be reconciled by purporting to weigh the value of one right against the value of the other and then preferring the right that is considered to be more valued, and jettisoning the other, because all protected rights have equal value. They are rather to be reconciled by recognising a limitation upon the exercise of one right to the extent that it is necessary to do so in order to accommodate the exercise of the other (or in some cases, by recognising an appropriate limitation upon the exercise of both rights) according to what is required by the particular circumstances and within the constraints that are imposed by s 36.

Judge Mlambo was also cognisant of the risks with televised broadcasts and referred to the judgment of the Constitutional Court in South African Broadcasting Corporation Limited vs The National Director of Public Prosecutions where the Court said the following:

Before turning to the question of the order, we consider it helpful to set out some considerations which in our view need to be taken into account in the future when the question of televising court proceedings is raised. The time has come for courts to embrace the principle of open justice and all it implies. However, in our view, it should be borne in mind that the electronic media create some special difficulties for the principle of open justice. Broadcasting, whether by television or radio, has the potential to distort the character of the proceedings. This can happen in two ways: first, by the intense impact that television, in particular, has on the viewer in comparison to the print media; and second, the potential for the editing of court proceedings to convey an inaccurate reflection of what actually happened. This is particularly dangerous given that visual and audio recordings can be edited in a manner that does not disclose the fact of editing. This distorting effect needs to be guarded against. It arises not so much from the presence of cameras and microphones interfering with the court proceedings themselves. But more dangerously, it may arise from the manner in which coverage can be manipulated, often unwittingly, to produce communications which may undermine rather than support public education on the workings of the court and may also undermine the fairness of the trial. Such distortions are much more likely to arise from edited highlights packages than from full live broadcasts.

What was interesting about Judge Mlambo’s judgment is how the judge differentiated between the impact radio and TV could have. In striking a balance between these competing considerations, Judge Mlambo made a series of orders.

What you will be able to see and hear

For starters, TV broadcasts will not include Pistorious’ or his witnesses’ testimony. Judge Mlambo ruled on this aspects as follows:

In balancing the competing rights at stake it is my view that the objection by Pistorius regarding the audio-visual recording as well as the still photography of him and his witnesses should not be taken lightly. It was argued on his behalf forthrightly that the inhibitory effect of audio-visual recording equipment, in particular the knowledge and awareness thereof by himself and his witnesses, will be great when they give their evidence. This potential was recognized by our highest court in the SABC vs NDPP. For this reason I am of the view that the audio-visual or televising and still photography of Pistorius and his witnesses when they testify be disallowed as this has the potential to deprive him of a fair trial on the grounds spelt out in argument on his behalf. I am persuaded that there is merit in his fears and that of his witnesses that they may be disabled somewhat in giving evidence.

TV broadcasts will likely include much of the State’s experts and witnesses although the Court made allowance for concealing witnesses’ identities if they require this. You will also be able to follow legal arguments and similar aspects of the trial.

On the other hand, you will probably be able to listen to most of the trial on radio as, Judge Mlambo reasoned, radio doesn’t have quite the same impact as TV or TV’s more problematic features in this sort of situation. The Court also imposed a number of restrictions on still photography which exclude photography of Pistorius, his witnesses and other witnesses who object. The judgment goes into quite a bit of detail about which cameras may be placed where, how they may be operated and supervised and more. Something else you won’t see are emotional close-ups of anyone. Those have also been prohibited.

Once again, be mindful of what you tweet

The point of allowing the trial to be broadcast is not to play to the hype surrounding the trial but more to give effect to the various rights and public policy considerations involved here (at least from the Court’s perspective). Judge Mlambo made a special point of addressing concerns about the planned coverage which everyone should take a few moments to consider:

I must hasten to mention that the decision I have come to should be embraced with the objective I have spelt out in this judgment. I mention this as it has come to my attention that there are media houses that intend to establish 24 hour channels dedicated to the trial only and that panels of legal experts and retired judges may be assembled to discuss and analyse the proceedings as they unfold. Because of these intentions, it behoves me to reiterate that there is only one court that will have the duty to analyse and pass judgment in this matter. The so-called trial by media inclinations cannot be in the interest of justice as required in this matter and have the potential to seriously undermine the court proceedings that will soon start as well as the administration of justice in general.

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p>In other words, be careful what you say online, in public discussions and, especially, if you are commenting on the case as part of the planned public broadcasts. As the judge said, there is one court that will adjudicate this matter and made any determinations of guilt. As far as the law is concerned, Pistorius is innocent unless the Court subsequently finds otherwise.

Could it be unconstitutional to block access to the Pirate Bay?

A recent Dutch court handed down a fascinating ruling which sided with ISPs who were under pressure to block the infamous Pirate Bay. What is really interesting about the ruling is that the Court found that ineffective blockades infringed ISPs’ rights under the European Charter of Fundamental Rights:

In its ruling the Court states that the Pirate Bay blockade is disproportionate and ineffective, citing TNO research and the Baywatch report of the University of Amsterdam. As a result, the blockade was found to hinder the Internet providers’ entrepreneurial freedoms.

The court based its decision on the Charter of Fundamental Rights of the European Union, which both includes “freedom to conduct a business” and “right to property.” In this case the entrepreneurial freedom outweighs property rights, because the blockades are disproportionate and ineffective.

The South African Bill of Rights has similar rights including the Freedom of trade, occupation and profession which states that –

Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.

The Dutch argument may not work in the context of our Bill of Rights but it is certainly an interesting argument to make. What must surely be relevant in a hypothetical South African court decision is how effective attempts to block access to torrent sites are and whether more draconian efforts become unduly oppressive?

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p>(Source: TorrentFreak’s post titled “ISPs No Longer Have to Block The Pirate Bay, Dutch Court Rules“)

Yes, you can be sued for sharing a defamatory Facebook post or tweet

A common and persistent misconception about social media is that the ordinary legal rules don’t apply. I still remember the incredulous tweets around the time of the Oscar Pistorius bail application from people who were astonished that a tweet can be defamatory. How often have you retweeted something amusing or even outrageous without a second thought about the possibility that you could be sued for that simple action? As the law stands, both in South Africa and elsewhere, this is a very real risk so the next time you see something scandalous and are about to reshare it, think again.

In the recent Isparta v Richter and Another case, Acting Judge Hiemstra found that the first defendant’s comments were defamatory. Reading the judgment, you may be forgiven to forgetting to ask whether the second defendant is also liable, particularly given that the second defendant was only tagged in the offending Facebook posts? Acting Judge Hiemstra’s finding on this question was very brief and, at the same time, pretty profound:

[35] The second defendant is not the author of the postings. However, he knew about them and allowed his name to be coupled with that of the first defendant He is as liable as the first defendant.

This is a pretty powerful finding. In the context of Facebook it means that if you are tagged in a defamatory content and you don’t do anything about being tagged (or perhaps even mentioned), you could be liable too. This argument likely extends to other platforms like LinkedIn, Google+ and perhaps even Twitter. In the case of Facebook you can control who can tag you (you can choose to approve any tags before the posts become public). As with Facebook, you can mention LinkedIn users although it’s not clear whether you can control this and remove tags. It’s the same issue with Google+ mentions.

Of course, on Twitter it isn’t possible to control who @-mentions you. At least on Twitter you can report a tweet as abusive and that may address Acting Judge Hiemstra’s concern that the second defendant “allowed his name to be coupled with that of the first defendant”. Acting Judge Hiemstra doesn’t seem to take into account the practical difficulty, if not impossibility, of removing these tags or mentions and it’s not clear what a person would need to do to disassociate him or herself from defamatory comments. This also links to a debate about what a retweet means: is it an endorsement or in some other way a sign of approval? Unfortunately the trend that has continued to emerged from a number of courts is that –

person who repeats or adopts and re-publishes a defamatory statement will be held to have published the statement

The recent UK McAlpine case highlighted this in the context of Twitter and retweeted defamatory statements and that approach is probably going to be expanded in our courts as defamation claims based on retweets are heard. The takeaway here is that you should carefully consider whether to reshare or retweet any material which could be regarded as defamatory unless you are comfortable that you have a defence to a defamation claim available to you in the event you are sued.

Apologising Can Help

Fortunately, an adequate apology can help you reduce your exposure to liability or perhaps even avoid it entirely. This depends almost entirely on the nature of the apology. Acting Judge Hiemstra made several references to apologies including the following (link to the Media 24 added):

[40] An apology in the same medium (Facebook) would have gone a long way towards mitigating the plaintiff’s damages. In fact, there is much to be said for the proposition that orders for damages for defamation are inappropriate. Nugent JA, in a minority judgment in Media 24 v Taxi Securitisation referred to a 1995 report of the New South Wales Law Commission, referred to by Willis J in Mineworkers Investment Co (Pty) Ltd v Modibaneu which called damages as the sole remedy for defamation “remedially crude”. Nugent JA said in para [72]: “As it is. an order that damages are payable implicitly declares that the plaintiff was unlawfully defamed, thereby clearing his or her name, and there can be no reason why a plaintiff should be forced to have damages as a precondition for having the declaration.”

An apology to the plaintiff, or a retraction in writing, in the same forum that the offending statements had been made, also clears the name of the plaintiff

In the Isparta case, the defendants didn’t apologise for the defamatory comments and seemed to maintain their entitlement to comment as they pleased. Acting Judge Hiemstra wasn’t persuaded by the defendants’ “specious technical defences” and I suspect that if the defendants had made a timeous and sincere apology, the finding would have been different.

In the 2009 Supreme Court of Appeal decision of Tsedu and Others v Lekota and Another, Judge of Appeal Nugent made the following comments about an apology that was made prior to the trial at a lower court:

I do not think much weight can be attached to that retraction and apology, coming as it did on the eve of a trial that was destined in any event to vindicate the respondents. One might expect that the appellants, having retracted and expressed their ‘sincere regret’, would then have turned their attention to the monetary value of the offence that they had caused, but that was not to be. Instead they persisted in compelling the respondents to find their full vindication in the courts. There has been nothing, in my view, that the appellants have done to mitigate the harm that they caused, and the respondents are entitled to a full measure of damages.

What the judges seem to be saying is that, for an apology to be effective in helping a party reduce exposure to liability, the apology should probably be sincere and essentially amount to a clear retraction of a previously defamatory comment. Equivocal apologies may be insufficient and if you are going to apologise, do it sooner rather than later. Apologising on the steps of court may not be convincing to a judge. Obviously your particular facts may require a different approach (and you really should talk t your lawyer about this in the context of your specific case – this really isn’t legal advice!).

Think Again About Resharing That

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p>A common and persistent misconception about social media is that the ordinary legal rules don’t apply. I still remember the incredulous tweets around the time of the Oscar Pistorius bail application from people who were astonished that a tweet can be defamatory. How often have you retweeted something amusing or even outrageous without a second thought about the possibility that you could be sued for that simple action? As the law stands, both in South Africa and elsewhere, this is a very real risk so the next time you see something scandalous and are about to reshare it, think again.

Isparta Facebook defamation case highlights a fundamental legal question

The recent Isparta v Richter and Another case in the Pretoria High Court expands on an earlier Facebook defamation case in the Johannesburg High Court and addresses a question that most people assume is answered from the start: does the defamatory material relate to the person who claims to be wronged? This case also makes an important point about the kind of compensation successful litigants are likely to receive. It’s not as much as you might expect.

The North Gauteng High Court (in Pretoria) recently delivered a judgment of Isparta v Richter and Another which I found interesting for a few reasons:

The judgment also raises an important point about the kind of monetary compensation successful litigants can expect and is a sobering reminder that the cost of litigating can far exceed a compensation award.

Who Is Defamed?

Acting Judge Hiemstra described the background to the case in paragraphs 9 and 10 of the judgment:

[9] The plaintiff and the second defendant were married to each other, but were divorced after acrimonious litigation. The plaintiff and the second defendant are still engaged in consequent litigation. The plaintiff obtained an order for the committal of the second defendant for contempt of court. She also obtained an interim interdict against him, with a return date in September 2013. The ongoing litigation concerns the second defendant’s alleged failure to comply with a settlement agreement entered into between the plaintiff and the second defendant in their divorce proceedings.

[10] The plaintiff has remarried and the first and second defendants have married each other. The plaintiffs husband has a son aged 16, who lives with her and her husband. She also has two children from her marriage with the second defendant. They are a girl, P-A, then aged 6, and a boy, G, aged 4

The first defendant posted several comments on her Facebook wall which tagged her husband, the second defendant, and which the plaintiff contended were defamatory. You can read the comments in the judgment in paragraphs 13 to 16. The posts attracted some comments from people who seemed to know the parties. The defendants admitted that the first defendant posted the comments on Facebook and that the second defendant was tagged in the comments. The plaintiff’s contentions were set out in her particulars of claim (the document describing a claim and which is usually attached to a summons) and Acting Judge Hiemstra summarised them as follows:

The plaintiff alleges in her particulars of claim that both the comments, quoted in paragraphs [13] and [16], are defamatory of her. The first one she claims, is disparaging and belittles her. She claims that the second one is malicious and aimed at damaging her reputation by implying that the plaintiff allows inappropriate interaction between her teenaged stepson and her minor daughter and that she is a bad mother.

Acting Judge Hiemstra then asked a question which is often assumed to be answered:

Do the comments refer to the plaintiff?

The judgment then evaluated a few tests which other courts had established in order to answer this question. Before I deal with that, bear in mind what the test for defamation is. In the H v W case, Judge Willis reviewed established case law in South Africa including a Supreme Court of Appeal judgment in the 2004 Mthembi-Mahanyele v Mail & Guardian which, according to Judge Willis –

affirmed the principle that the test for determining whether the words in respect of which there is a complaint have a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned

The Court, in the Mthembi-Mahanyele case set out the test for defamation as follows (and cited a 1993 case in the then-Appellate Division of Argus Printing and Publishing Co Ltd v Esselen’s Estate) –

The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words … to convey a meaning defamatory of the plaintiff… . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’

Judge Willis didn’t seem to deem it necessary to deal with the question Acting Judge Hiemstra asked in the Isparta case but you can see why Acting Judge Hiemstra’s question is pretty fundamental to this case and every defamation case. The challenge facing a plaintiff in a defamation case is as follows (authorities in footnote 4 of the judgment):

A plaintiff in a defamation action must prove that the impugned statements are directed at him or her. If a plaintiff is not directly referred to in the defamatory statement, the plaintiff must plead the circumstances which would have identified him or her to the addressees.

The first test which Acting Judge Hiemstra referred to came from the 1944 English case of Knupffer v London Express Newspapers Ltd and is a two part test:

There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law – can the article, having regard to its language be regarded as capable of referring to the appellant? The second question is a question of fact namely does the article in fact lead reasonable people, who know the appellant, to the conclusion that it does refer to him"? Unless the first question can be answered in favour of the appellant, the second question does not arise …

Put another way –

(a) can the words be regarded as capable of referring to the plaintiff?; and

(b) did the words in fact lead reasonable readers who know the plaintiff to the conclusion that they do refer to her?

South African courts seemed to approve this test although, in a 2009 case in the Johannesburg High Court, Acting Judge Gautchi proposed streamlining the test and formulating a single question:

The only relevant rule is that in order to be actionable, the defamatory words must be understood to be published of and concerning the plaintiff.

Acting Judge Hiemstra found the logic of this revised approach to be “unassailable” and, in applying this test to the facts, found as follows that both comments were understood to relate to the plaintiff.

Framing Defamatory Comments and Whether They Are Individually or Collectively Defamatory?

After dealing with two further issues the defendants’ lawyers raised (whether each offending post should be interpreted in isolation or together – given the timing, a “reasonable Facebook user would have understood all the postings related to issues between the plaintiff and the defendants” – and whether posing one of the comments as a question changed its apparently defamatory nature – it was essentially a statement, so no), Acting Judge Hiemstra considered another interesting question:

Are the comments individually or individually and collectively, defamatory?

Here Acting Judge Hiemstra found the comments are both individually and collectively defamatory:

[32] The first comment is to the effect that the plaintiff is meddlesome and interfering. It is a personal message addressed to the plaintiff. If the first defendant had an issue with the plaintiff, she could have addressed it with her personally However, she chose to publish it on Facebook where all her friends and friends of the plaintiff would read it. Although the first message does not constitute serious defamation, publication thereof on her Facebook wall was gratuitous and with the intention to place the plaintiff in a bad light.

[33] The second impugned posting is scandalous to the extreme It suggests that the plaintiff encourages and tolerates sexual deviation, even paedophilia Some of the defendants’ friends lapped it up with relish and added their own snide comments, compounding the damage to the plaintiff’s reputation.

[34] I therefore find that both statements are defamatory, individually and collectively.

Keeping Up to Date on Technological Developments

In the post about the H v W case, I raised a concern about judges relying too heavily on dated research as authority for how social networks work. In that case, Judge Willis relied on an article by South African Professor of Private Law at the University of South Africa, Anneliese Roos (her article is titled “Privacy in the Facebook Era: A South African Legal Perspective” and was published in the 2012 South African Law Journal) as his basis for explaining how Facebook works.

As I read Roos’ article, it seemed to me that she didn’t have a clear and current understanding of how Facebook worked at the time (and some of its mechanics have changed at least once since her article was published last year). In my post about the H v W case, I wrote the following:

Unfortunately Roos’ understanding of Facebook’s privacy controls and how it works, generally, is limited as expressed by her article and Judge Willis has accepted her explanation as a complete and accurate exposition of privacy on Facebook. This will likely, and unfortunately, colour future Court judgments regarding Facebook privacy issues.

This has started to happen. Acting Judge Hiemstra quoted portions of Judge Willis’ judgment and Roos’ article in order to explain how Facebook works and I am certain we will see this happen more and more going forward. The challenge, of course, is that Facebook (and other services) change their mechanics and settings on an ongoing basis and if court decisions are not going to be based on updated models, we are going to see a strong disconnect emerging between how judges think these services work and how they actually work. The law that emerges from our courts will become problematic because it will be based on inaccurate factual and contractual models.

Hopefully judges will become more familiar with how social networks are changing and update their conceptual models to better fit changing circumstances.

The Finding

Ultimately, Acting Judge Hiemstra found the first and second defendants to have defamed the plaintiff and ordered them, collectively and individually, to pay the plaintiff R40 000. Many people think that a defamation action could earn them substantial monetary compensation if they win and that generally is not the case in South Africa. Acting Judge Hiemstra briefly discussed monetary compensation (or “damages”) in the judgment and, referencing a Supreme Court of Appeal judgment of Mogale and Others v Seima, pointed out that –

awards in defamation cases do not serve a punitive function and are, generally, not generous.

How much a court awards depends on the nature of the defamatory material, the harm suffered and the parties’ standing. Defamation awards are rarely high and are likely exceeded by the costs of going to court in the first place. Another thing to bear in mind is that even though the successful party usually also wins a portion of his or her legal costs too, a successful litigant almost never recovers all his or her legal costs and, if the damages are relatively low, a costs recovery can be even less because it would be measured on a lower court scale which allows for lower recoveries.

<

p>In this case, because the compensation awarded was only R40 000 and that amount is well within the Magistrates Court’s R100 000 limit, costs were ordered on the “appropriate magistrates court scale” which may not have amounted to a significant portion of the plaintiff’s actual legal costs of her attorney and advocate (very possibly in excess of R100 000, likely even more).

Defamation law’s chilling effects on social media

If you look to recent cases, you generally see this issue arising in the context of politicians and sports personalities whose indiscretions are published online (usually Twitter) and disseminated rapidly. Embarrassed plaintiffs and applicants approach courts, indignant, and seek to silence the debates and expressions of schadenfreude. The courts, applying the law as they understand it to this new medium, grant orders which sometimes just seem to be out of touch with new realities. What concerns me about these cases is that simply applying these legal principles to this new, unprecedented landscape can, and often does, have a chilling effect on freedom of expression. 

Jamie's 3rd birthday party photos-24

Quirk invited me to listen to and watch Emma Sadleir speak about social media and the law last Friday. She took the Quirk team and a few guests (which included me) through South African law on defamation and how it related to social media. For the most part she dealt with fundamentals in our law and, at one point, she pointed out that, in her view, retweeting a defamatory tweet exposed the re-tweeter to a defamation claim alongside the original poster.

@emmasadleir “anyone can be sued in ‘chain of publication’”… “but there is a ‘innocence of dissemination’ defence” #UoQJozi

— justinspratt (@justinspratt) March 1, 2013

I don’t necessarily agree with Emma’s views but I agree that a court will likely see retweets as endorsements and will hold re-tweeters (and equivalent users on other platforms) liable for defamation because they clicked a button and shared a defamatory update with their followers or connections.

While I can understand the argument and agree there is merit to it, as well as the challenge that retweeting and similar sharing online potentially and exponentially aggravates the initial defamation, I don’t necessarily agree that it should be actionable on this scale.

If you look to recent cases, you generally see this issue arising in the context of politicians and sports personalities whose indiscretions are published online (usually Twitter) and disseminated rapidly. Embarrassed plaintiffs and applicants approach courts, indignant, and seek to silence the debates and expressions of schadenfreude. The courts, applying the law as they understand it to this new medium, grant orders which sometimes just seem to be out of touch with new realities. What concerns me about these cases is that simply applying these legal principles to this new, unprecedented landscape can, and often does, have a chilling effect on freedom of expression.

The social Web is an unparalleled platform for expression (both desirable and undesirable). It is absolutely used for undesirable purposes that include unjustifiably harming reputations, economically harming content creators by exploiting their work without their permission and harming systems around the world. At the same time, it is a powerful platform for previously disenfranchised voices which include protestors fighting oppressive regimes and consumers speaking out against irresponsible brands.

Applying conventional defamation law to these scenarios without developing a more nuanced and robust model of what should be protected free expression could have the effect of stunting what could otherwise be a radically transformative shift in our collective culture towards a more transparent and empowered society. A quote from the 1925 US Supreme Court case of Whitney vs California seems appropriate:

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.