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DEFAMATION CASES RE- PUBLICATION Tsedu v Lekota

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a newspaper that publishes a defamatory statement that has been made by another is as much the publisher of the defamation as the originator is. NO defence for the newspaper to say that what was published was merely repetition. TRUTH OF STATEMENT = DEFENCE IF = PUBLISHED for public benefit = the defamation itself is true, not merely that it is true that the statement was made

IS MEANING DEFAMATORY Mahomed v Jassiem

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if the views held by the specific community are at odds with the values of the Constitution, such sectional view would not be upheld;

Sokhulu v New Africa Publications

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the courts will take the norms and values of the Constitution into account, and in particular those sections of the Constitution that eschew discrimination based on person attributes or characteristics

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substantial truth and not absolute truth

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media privilege defence A media defendant will not be held liable for the publication of false and defamatory statements if, in publishing the defamatory statements, it acted without negligence, and in all the circumstances the publication of the defamatory material was reasonable;

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What will figure prominently is the nature of the information on which the allegations were based and the

TRUTH FOR PUBLIC BENEFIT Times Media Ltd v Nisselow REASONABLENESS National Media v Bogoshi

Pienaar v Argus Printing and Publishing Co Ltd

reliability of the source, as well as the steps taken to verify the information”.

Malema v Rampedi

PROTECTED (FAIR) COMMENT Mc Bride

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Court used the Bogoshi test= “was there substance to the claims made by the newspaper; and whether the source was reliable?”

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CC held that even though the newspaper’s commentary was at times’ to a degree ungenerous and distasteful’, ‘ vengeful’ and ‘ unrelentingly harsh and unforgiving’ = commentary qualified as an honest, genuine expression of opinion relevant to the facts upon which it is based, and not disclosing malice”.

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state must prove all the elements of the offence beyond reasonable doubt; no onus on the accused to disprove his or her guilt “ same defences as in a civil matter can be used”;

CRIMINAL DEFEMATION Hoho v S

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S v Cecil Motsepe

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represents the first time that a journalist has been convicted of criminal defamation in the post- Apartheid era

ELEMENTS OF DEFAMTION 1. Publication -

act of making known the defamatory matter to others; publication = made known to a 3rd party (other than person defamed) print or speech Re- publication:  Re-publication NOT a defense  Liability of re-publisher is the same as original publisher of defamatory material.  Tsedu v Lekota = defence will only succeed if the defamatory statement is itself true.

2. The published matter must have a defamatory element -

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STAGES: 1. Establish the ordinary meaning of the words used; 2. Establish whether the meaning is defamatory? Ordinary meaning of the words used: Is the meaning defamatory  Test= does the statement tend to lower the plaintiff in the estimation of right thinking persons, generally = question whether the statement is likely to injure the good esteem in which the plaintiff is held by the reasonable or average person to whom it had been published must be asked;  Was the statement calculated to expose the person to ‘hatred, contempt or ridicule = Mahomed v Jassiem  Courts have attributed to the ‘reasonable or average’ person the nondiscrimanatory values and norms that underpin the Constitution = Sokhulu v New Africa Publications the courts will take the norms and values of the Constitution into account, and in particular those sections of the Constitution that eschew discrimination based on person attributes or characteristics

3. The defamatory matter must refer to the plaintiff

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Objective test; Question= whether the words used are reasonably capable of conveying to the ordinary reasonable reader that the defamatory material applies to the plaintiff? The plaintiff may either be named, or easily identifiable from circumstantial information referred to in the defamatory material

ELEMENTS OF DEFAMTION -

DEFENCES:

1. Truth and for public interest or in the public benefit 2. Protected comment (previously known as fair comment); 3. Qualified privilege; (e.g. made in the course of fair and accurate reporting of either court proceedings, parliament proceedings; 4. Reasonableness

1. Truth for the public benefit ( public interest) -

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Requierments: 1. True / substantially true 2. Published for public interest Times Media Ltd v Nisselow = substantial truth and not absolute truth

2. Reasonableness: -

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National Media v Bogoshi= “ media privilege defence” = A media defendant will not be held liable for the publication of false and defamatory statements if, in publishing the defamatory statements, it acted without negligence, and in all the circumstances the publication of the defamatory material was reasonable; Pienaar v Argus Printing and Publishing Co Ltd 1956 (4) SA 310 (W) = “ What will figure prominently is the nature of the information on which the allegations were based and the reliability of the source, as well as the steps taken to verify the information”. Factors to determine reasonableness of publication:

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The nature of the defamatory allegations; e. g public interest? Political discussion? Source of the information and whether the source is reliable; e.g first hand knowledge of the information? Ulterior motive? Realiability of the source? corroboration? With regard to documents used; e.g. authencity; Right of reply; e.g reasonable opportunity to respond; Circumstances of the publication including the timing; The tone of the article; e,g use of cautious language

3. Protected (fair) comment: -

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the material in question must amount to comment or opinion, not statements of fact commentary must be fair, not disclosing malice by the author The facts on which the commentary is made must be true or substantially true, and such facts must be expressly stated or clearly indicated in the commentary, unless they are facts that are generally known commentary must concern a matter of public interest TEST WHETHER A STATEMENT IS OF FACT:  Objective test;  The ordinary reasonable person should be able to distinguish the statements of fact from opinion  Mc Bride = “ CC held that even though the newspaper’s commentary was at times’ to a degree ungenerous and distasteful’, ‘ vengeful’ and ‘ unrelentingly harsh and unforgiving’ the commentary qualified as an honest, genuine expression of opinion relevant to the facts upon which it is based, and not disclosing malice”.

4. Privileged occasion -

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Absolute privilege = protects the utterer of defamatory statements made in the course of parliamentary proceedings Qualified privilege

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= extends to defamatory statements made on certain other occasion. The privilege is qualified because it may be forfeited if it is actuated by improper motive or malice Parliament, provincial legislatures; local government, public bodies and courts or similar tribunals e.g absolute privilege extends only to “parliamentary proceedings” The report to succeed based on this defence must be “fair and substantially accurate” Privileged occasion only attaches to a report of the actual proceedings, held in open proceedings. It does not attach to defamatory matter which is not part of the proceedings

REMEDIES 1. Damages : special v general damages; 2. Interdict; 3. Apology

1. General damages -

Factors in assessing the award for damages; Where the defendant repeatedly publishes the offending statement; Where defendant persists in a truth for public benefit defence where the defendant knows that such defence is not sustainable; Where the defendant is motivated by an improper or unlawful motive; The delay, inadequacy or absence of a published apology; The conduct of the defendant in conducting its defence; Seriousness of the defamation; The extent of the publication; The nature of the publication; Reputation and character of the plaintiff; The conduct of the plaintiff “Tsedu case

2. Special Damages: -

Where the plaintiff can prove that the publication of the defamatory material causes financial loss Plaintiff must prove the following; 1. The defendant published a false statement that he/she knew to be false; 2. The false statement had caused the plaintiff to lose business; 3. The defendant intended to cause the plaintiff’s financial loss by the publication of the statement

3. Interdict -

If an applicant has knowledge that his reputation will be impaired by defamatory matter to be published, he may approach the court to interdict the publication of the story;

4. Apology

CRIMINAL DEFAMATION -

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Hoho v S = state must prove all the elements of the offence beyond reasonable doubt; no onus on the accused to disprove his or her guilt “ same defences as in a civil matter can be used”; S v Cecil Motsepe = represents the first time that a journalist has been convicted of criminal defamation in the post- Apartheid era...