Defamation / Reputation, Privacy, Data Protection and Retention
Don Domingo v. Google Spain
Closed Expands Expression
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After George Prokas placed a billboard in downtown Johannesburg, calling Cell C “the most useless service provider in SA as experienced by Cell C Sandton City,” Cell C filed an urgent request with the High Court of South Africa requesting the Court to order the banner’s removal. The Court dismissed Cell C’s application, upholding Prokas’ right to display the message under the doctrine of fair comment.
The suit in question arose after Prokas made numerous trips to Cell C Sandton, beginning in August 2013, in effort to have his daughter’s cell phone repaired. Over the course of the next six months, Prokas tried, unsuccessfully, to communicate with the store about the status of his repairs. After six months had passed, Prokas received a call alerting him that the phone was ready to be picked up; however, when he arrived, he was given a phone with a cracked screen that he did not recognize. Prokas refused to accept the phone and told the manager that either the contract should be cancelled or the phone should be replaced. He did not take the phone with him at that time. In August 2014, it came to Prokas’s attention that the phone, which he thought Cell C still had, was in use by another customer—a stranger to him. Prokas, who had still been getting the bill for his daughter’s phone, stopped paying at this point.
In September 2014, Prokas, upon attempting to purchase a car, found out that his credit bureau had listed “him as a bad payer, arising out of non-payment to Cell C of R5,754,00,” (para. 10.). Prokas called Cell C’s legal department and was told that the problem would be corrected, but it was not. Both Prokas and his secretary called Cell C repeatedly, but received no answer. On October 7, Cell C informed Prokas that his account had been given to a debt collection agency. Prokas requested that Cell C provide him with a copy of his contract, “because he could not believe that he was required to effect payment in circumstances where he did not have the phone, which was apparently still being repaired, and was being used by someone else,” (para. 11.4). Prokas’s secretary then requested that Cell C remove his listing with the credit bureau until he received the contract.
On October 15, Cell C alleged that Prokas had collected the repaired phone at the Cell C in Rosebank, to which Prokas protested he had never been. On October 23, Prokas’s secretary sent an email to Cell C on his behalf, informing Cell C that Prokas planned to put up a banner unless the situation was resolved by the close of business the next day. She attached a copy of the banner (which ended up being slightly different than the one that was ultimately erected), which stated “Cell C was the most useless service provider in South Africa as experienced by Cell C Sandton,” (para. 11.13). On October 24, Cell C emailed Prokas, telling him that they would remove his credit listing by October 27. On October 28, the listing was still there, so Prokas called Cell C, yet again, and was told to call Riaan Van Rooyen, the franchise Manager. Van Rooyen told Prokas “his executive head had ruled that the ITC listing would only be removed if he paid the sum of R5,754,”(para. 14).
On November 6, Prokas’ banner went up, reading “Cell C” (this clause was in small print) “perceived by the owner of this billboard to be” (this clause was written in large print) “the most useless service provider in SA as experienced by Cell C Sandton City,” (para. 16). Beneath this, the banner read “Cell C’s Van Rooyen franchise manager…his unnamed executive head refuses to assist the customer,” (para. 16). Van Rooyen’s cell phone was also listed on the banner. Prokas altered the banner slightly to increase the size of the clause “perceived by the owner of this billboard to be” and removed the some of the identifying marks around the “C” in Cell C (para. 2.2).
Cell C then filed this urgent request with the High Court of South Africa, requesting the Court to order the banner’s removal.
Weiner J delivered the opinion of the Gauteng Division of the High Court of South Africa. After first dispensing with a procedural matter, whereby the Court rejected that this application should be considered “urgent,” given that “the urgency was self-created” by Cell C (para. 30.), the Court moved to the substance of the complaint.
Cell C argued “that a defamation has taken place, that it is prima facie unlawful and that Prokas has failed to show he was justified in making the statements which he did,” (para. 33). There is a two-step inquiry for determining if something is per se defamatory or defamatory in its ordinary meaning: 1) “the ordinary meaning of the statement must be ascertained; and 2) once the ordinary meaning has been ascertained, it must be determined whether that meaning is defamatory,” (para. 38).
Part one of this test is objective and looks to “what meaning a reasonable reader of ordinary intelligence would attribute to the statement,” (para. 39). Part two takes the approach that “a statement is defamatory if it would tend to lower the plaintiff in the estimation of right thinking members of society generally,” (para. 40). Cell C claimed that two rebuttable presumptions arose following Prokas’ publication: “that the publication was wrongful” and that there was intent (para. 42). The onus to rebut is on Prokas, and, for defamation cases, justification can rebut the presumption of wrongfulness and that there had been no intent to injure reputation would rebut intent. In this case, Prokas was also required to show that his statements were regarding a matter of public interest.
Cell C argued that Prokas could rebut these presumptions in “due course,” but, for the interim, requested that he banner be removed until he did (para. 48). To this, the Court determined that Prokas’s version of events could not be disputed and, as such, Prokas “has discharged the onus on the papers…having regard, inter alia, to the fact that Cell C chose not to reply,” (para. 49).
The Court then turned to the justification grounds and the defense of fair comment. Quoting a decision of the South African Constitutional Court, the Court stated “the defence [of fair comment] protects criticism, comments or expressions of opinions on facts which are true, and which relate to matters of public interest, and if they are such that any fair man might make them on those fact,” (para. 50). The requirements for the defense of fair comment are that “1. The statements in question were comment or opinion; 2. they were fair; 3. the facts that the comments were based on were true; 4. and the comments related to a matter of public interest,” (para. 51).
Prokas’s language on the banner employed language that clearly suggested that it was his opinion, e.g., “is perceived by the owner” (para. 52), satisfying the first element. As to whether the comments were fair, the Court relied on the Constitutional Court’s standard, finding “[t]he criticism need not be one that the court accepts. It does not have to be impartial or well balanced. It only needs to be fair in the sense that Prokas held it as an honest, genuine expression of his opinion,” (para. 54). Further, the Court found there to be sufficient factual evidence in the record to support that Prokas’s criticism were a true reflection of his experience with Cell C. The Court also found that this matter was undeniably in the realm of public interest.
For the foregoing reasons, the Court upheld Prokas’ fair comment defense and dismissed Cell C’s application.
NOTE: Prokas stated that if the Court does not grant Cell C’s request, he will continue to display the banner as it was updated in the second instance, only this time, he will remove Van Rooyen’s name and cell number. However, “Prokas states that the removal of Van Rooyen’s name and cell number will be done solely for the purpose of avoiding controversy on this aspect and is not to be construed as a concession by him that he was not entitled to include Van Rooyen’s name and cell number as per the original banner,” (para. 2.4).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision by the High Court of South Africa expands freedom of expression, upholding the importance of the doctrine of fair comment as enshrined in South African legal precedent.
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.
This decision upheld the right to freedom of expression under the doctrine of fair comment. The Court, in line with South Africa’s jurisprudence, decided this case in a manner that maintains the balance between the right to freedom of expression and the “rights to dignity, fama, and an unsullied reputation” (para. 64).
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