Defamation / Reputation, Licensing / Media Regulation, Press Freedom
Kieser v. Germany
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Closed Mixed Outcome
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Freedom of speech is limited to speech that does not infringe upon another persons’s other constitutionally guaranteed rights. Here, the Times of Swaziland‘s publication of a false newspaper article accusing Senate President Gelane Zwane of having a different father violated Zwane’s right to dignity, as guaranteed by Swaziland’s Constitution. As such, the Times’ appeal was denied and the ruling that it had defamed Zwane was upheld.
This case stems from an article published in the Times of Swaziland that accused Senate President Gelane Zwane of being fathered by a different individual than whom she had previously claimed. The implications, if the story were true, would be to undermine Zwane’s social and political status, as it would indicate that she was not a member of a particularly well-regarded tribe. In response to the article, Zwane sued the Times for defamation, a case she subsequently won. The Times then appealed that decision.
The Supreme Court of Swaziland began its analysis by noting that freedom of expression is a constitutionally protected right. However, the Court went on to state that the right to free speech is not itself “sacrosanct”; rather, it has limitations in its applicability, especially when it conflicts with other rights guaranteed by the Constitution. Freedom of speech must be balanced against the constitutionally guaranteed right to have one’s dignity respected.
The Times argued the article was not defamatory because it was only innuendo, which provides an exception to defamation. The Court disagreed, citing Black’s legal dictionary and prior case law, and defined innuendo as “an oblique remark or indirect suggestion of a derogatory nature.” Further, the Court undertook an objective analysis in determining the difference between innuendo and direct defamatory speech. That is, courts must look at what a reasonable person would have understood the speech to have meant or implied. In the present case, the Times did not use innuendo: it directly raised accusations against Zwane’s heritage that a reasonable person would have understood to mean that Zwane had a different father than she had previously claimed. As such, the speech was defamatory per se.
Still, the defendant in a defamation case can also raise defenses that will absolve him from liability, even after a finding that the speech was defamatory per se. The Court refers to the “reasonableness standard.” That is, even after printing false and defamatory speech, a publisher can be excused for such conduct if it reasonably could have believed what it was publishing was true, and the publisher had taken reasonable steps to verify said accuracy. Additionally, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made, except in cases where the seeking or publication of a response was not practicable, or if it was unnecessary to give an opportunity to respond.
Here, the Court held that the Times had failed its duty to adequately ascertain the truth of its statements against Zwane before publishing them. Further, the Court found that the Times had little reason to believe the story was true, as it came from unreliable and unverified sources, which it would have needed to investigate further to allow for a reasonableness defense. Additionally, the Times had only half-heartedly sought a response to the story from Zwane and had only waited a week between contacting her prior to printing the article, which the Court found to be too short of a time given the lack of urgency to print the story. As such, and because it turned out that the statements were false, the Times defamed Zwane and violated her constitutional right to dignity.
The Times also raised the defense that because Zwane is a public figure, even though the story is false, they should not be liable for defamation because the story was printed in the interest of the public. While acknowledging that the story could be in the public interest because it went to Zwane’s eligibility to hold a high ranking position in her clan, the Court still felt that it was not of public interest because it was not a right for the public to know, especially because it turned out to be false. The Court then concluded that the story was published maliciously and as an attack piece against Zwane, rather than for any public interest.
The Court concluded that the lower courts had been correct in determining that the article was defamatory and that the Times was liable for failing to respect the dignity of Zwane.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision from the Supreme Court of Swaziland yields a mixed outcome, as it shows the careful line courts must tread as they seek to balance one’s constitutional right to freedom of speech with another’s constitutional rights to dignity and privacy.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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