Press subjected to a different test in defamation cases

Defamation is a hot topic these days with Donn Edwards’ battle with Quality Vacation Club being the most talked about stories in the South African social Web. Defamation cases are strange beasts. They don’t involve large monetary awards and they can be particularly complex cases to prosecute (whether you are in the firing line or the one pulling the trigger). In order to succeed in a defamation action, a plaintiff must establish that the defendant has published defamatory material that a “reasonable person of ordinary intelligence might reasonably understand the words of the article to convey a meaning defamatory of the plaintiff”. If the plaintiff is successful in proving this, the defendant must then establish the existence of a substantive ground of justification if the defendant is to escape liability. These grounds of justification, or defences, include the fact that the defamatory material is true and in the public interest, fair comment and even that the material was in jest. There isn’t a closed list of defences but these are some of the more common ones.

Before 1998 the press were subjected to strict liability for defamatory material it published. This meant that owners, publishers, printers and editors were immediately liable for defamation if a plaintiff could prove that the material was defamatory. The defences available to individual defendants were simply not available to the press. It wasn’t even necessary to prove that the publication was negligent or published the material intentionally, knowing it was defamatory. The state of the law at the time left the press in a difficult position.

In 1998 the Supreme Court of Appeal ruled on the case of National Media Limited v Bogoshi and changed the law. The court overturned its own earlier decisions and said that the classic defences to defamation were available to the press as well. However, the courts have also recognised that defamatory material published in the media can have a far reaching effect so the courts have said that the press will be held liable if found to be negligent in publishing defamatory content (the flip-side is that a publication can escape liability by proving that it acted reasonably in publishing the material concerned). In answering the question whether defamatory material was published negligently, the following factors will probably be taken into account:

But where publication is justifiable in the circumstances the defendant will not be held liable. Justifiability is to be determined by having regard to all relevant circumstances, including the interest of the public in being informed; the manner of publication; the tone of the material published; the extent of public concern in the information; the reliability of the source; the steps taken to verify the truth of the information (this factor would play an important role too in considering the distinct question whether there was negligence on the part of the press, assuming that the publication was found to be defamatory); and whether the person defamed has been given the opportunity to comment on the statement before publication. In cases where information is crucial to the public, and is urgent, it may be justifiable to publish without giving an opportunity to comment.

This new angle on the press’ liability in defamation cases provides the press with an additional defence and, at the same time, a slightly more challenging test to meet. The freedom of the press is an important component of the freedom of expression which is entrenched in the Bill of Rights and decisions which followed have placed particular emphasis on the press’ role in both protecting and promoting freedom of expression in South Africa. A decision which followed the Bogoshi case contained a particularly interesting quote which reveals the Constitutional Court’s perception of the press:

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. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. As Deane J stated in the High Court of Australia:

“. . . the freedom of the citizen to engage in significant political communication and discussion is largely dependent upon the freedom of the media.”

The media thus rely on freedom of expression and must foster it. In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression.

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