Content Regulation / Censorship, Defamation / Reputation, Protection of Sources
Marena v. Auler
Closed Mixed Outcome
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The South Gauteng High Court in Johannesburg held that statements made by a political party that certain journalists had been apartheid agents were defamatory. The application was brought by two journalists after the party published a statement on Twitter repeating allegations made by Winnie Madikizela-Mandela that the journalists had worked for an apartheid government-sponsored disinformation and propaganda campaign. The Court stressed that there was no evidence of the truth of the allegations and held that the political party could not rely on the defences of reasonable publication and fair comment.
During South Africa’s Truth and Reconciliation Commission (TRC) hearings in the 1990s Winnie Madikizela-Mandela identified journalists she believed were working with Stratcom – the “notorious propaganda and disinformation unit of the security police of the apartheid government” [para. 1]. Two journalists she named in her testimony were Thandeka Gqubele-Mbeki and Nomavenda Mathiane. The TRC did not confirm Madikizela-Mandela’s allegations due to a lack of evidence.
On April 4, 2019 Madikizela-Mandela was interviewed by the Huffington Post and she reiterated her allegations of journalists working for StratCom. In this interview she again referred to Gqubele-Mbeki – now working as a senior journalist at the South African Broadcasting Corporation – and Mathiane, but also included Anton Harber – an academic and journalist. Following the interview, the Economic Freedom Fighters (EFF) – a South African political party – and its national spokesperson, Mbuyiseni Ndlozi, published statements on Twitter referring to Madikizela-Mandela’s allegations of the journalists’ links to Stratcom. Ndlozi specifically called on all forty journalists alleged to have been on StratCom’s payroll to confess and ask for forgiveness. In a second tweet on April 13, Ndlozi questioned whether an article Harber had written in 1995, which had first exposed StratCom’s use of journalists, actually constituted Harber exposing himself as one of those journalists.
On April 13, 2019, the Huffington Post issued a statement “unequivocally and unreservedly apologizing” to Gqubele-Mbeki, Mathiane and Harber and acknowledging that Madikizela-Mandela’s statements were her opinion and that she had not produced evidence to substantiate them. The Huffington Post acknowledged that the publication of the video of Madikizela-Mandela’s interview was “not in keeping with the spirit of the Press Code in that it failed to seek comments from [Gqubele-Mbeki, Mathiane and Harber] prior to publishing the interview and to give a proper context to the history that the documentary recounts” [para. 22].
Gqubele-Mbeki and Harber brought an application in the High Court in Johannesburg against the EFF and Ndlozi. They sought an order declaring that the statements made by the EFF and Ndlozi were defamatory and false and the publication of the statements was unlawful. In addition, the journalists asked for damages of R500 000 (approximately USD 33 000 in 2020) each and an order that the EFF and Ndlozi remove the statements from their media platforms and publish an apology and retraction.
Judge Modiba delivered the judgment of the South Gauteng High Court in Johannesburg. The central issue for the Court’s determination was whether the EFF’s statements constituted defamation.
Gqubele-Mbeki and Harber highlighted that they had both played prominent roles in the anti-apartheid struggle and that this was publicly known: as a result, the EFF’s statements that they were working for StratCom created the innuendo that “they were traitors who deceitfully betrayed their friends and comrades in the struggle against apartheid” [para. 68]. They argued that the EFF’s allegations were particularly vicious because of the ruthless way in which the anti-apartheid movement dealt with alleged traitors. Gqubele-Mbeki and Harber highlighted the reach of the EFF’s statements and the impact of the statements, particularly given the EFF and Ndlozi’s position as “influential political role players” [para. 69].
The EFF raised the defences of reasonable publication and fair comment. They submitted that their statements did not apply to Gqubele-Mbeki and Harber specifically because they referred to “forty journalists” that were alleged to be part of StratCom. In addition, they argued that they had “merely paraphrased what Ms. Madikizela-Mandela stated in the documentary” and that Madikizela-Madela had a “right to aggressively respond to [Gqubele-Mbeki and Harber’s] negative reportage against her, and to use a public platform to defend herself and her image” [para. 48]. The EFF also maintained that it had a right as a political party to “express its fair comment about information that was in the public domain and that as journalists, [Gqubele-Mbeki and Harber] should not be too sensitive” [para. 48]. The EFF argued that the statements were true as they were made by Madikizela-Mandela – “a person they consider to have credibility” [para. 49].
The Court defined defamation as “the wrongful and intentional publication of defamatory words or conduct that refer to another person” [para. 53]. It stressed that the onus of establishing that the statement is defamatory lies with applicants in a defamation case and that once this has been established, there is a presumption that the publication of the statement is intentional and wrongful. The onus then shifts to the respondents to rebut this presumption.
The Court rejected the EFF’s argument that they did not make the claim that Gqubele-Mbeki and Harber themselves were StratCom journalists as “disingenuous”. The Court highlighted that the reference to Madikizela-Mandela’s interview in the EFF’s statement clearly linked their comments to the journalists specifically named by Madikizela-Mandela (which therefore included Gqubele-Mbeki and Harber). In addition, the Court noted Ndlozi’s tweets which referred to articles written by Harber as further proof that the EFF and Ndlozi were referring to Gqubele-Mbeki and Harber specifically in their statements. In addition, the Court characterized the EFF’s statements as simply accepting the truth of Madikizela-Mandela’s own statements but noted that the EFF had not provided any evidence to support these statements. In analysing the truth of Madikizela-Mandela’s statements, the Court referred to the fact that when she testified at the TRC she had no evidence proving the truth of the allegations and that she was still unable to provide evidence when she was interviewed for the Huffington Post.
Accordingly, the Court held that the EFF did not have any evidence of the truth of the allegations they made against Gqubele-Mbeki and Harber and added that the EFF had not taken the Court into their confidence to let the Court know what steps the party had taken to verify the truth of the statements before publication. The Court held that the EFF’s version “illustrates that they had no intention of verifying the allegations and that they had accepted the allegations as true as they were made by a person who in their view has credibility as she is of a high standing” [para. 66]. The Court stressed that the “standing of a person does not absolve them from the responsibility to back up allegations with evidence” [para. 66].
The Court therefore held that the statements were defamatory.
In analyzing the defence of reasonable publication, the Court highlighted that this is usually a defence reserved for the media. The Court referred to Manuel v. Economic Freedom Fighters 2019 (5) SA 210 (GJ) which was the first time this defence was extended to a non-media party. The Court disagreed with the Manuel case, commenting that the extension of this defence is “inappropriate” and that the justification given in that case that “public access to social media justifies such an extension” was incorrect [para. 72]. The Court noted that the EFF’s conduct in this case “demonstrates how toxic social media can be due to the absence of regulation” [para. 72]. Here, the Court emphasized that the media is “an organized profession bound by media ethics as set out in the Press Code” and that its members are accountable to that Code which requires journalists to “report news truthfully, accurately and fairly, in context and in a balanced manner, without distortion, exaggeration or misrepresentation” [para. 73]. The Code also requires that when a journalist reports on “opinions, allegations, rumours or suppositions” this must be made clear and that journalists are required to verify news or state why such verification was not practical. The Court noted that there is no mechanism to regulate the conduct of non-media players on social media, and stated that an extension of the defence would “lower the threshold for defamation, thereby encouraging reckless publication of information that has not been verified, under circumstances where the publisher is not bound to act fairly towards the implicated person as journalists are” [para. 74]. The Court acknowledged that there is a lower standard for defamation for the media, but that this is justified because of the existence of the Press Code’s requirement that untested allegations be verified before publication.
In any event, the Court held that even if the defence was available to the EFF as non-media players, they had not satisfied the criteria for the application of the defence. The Court set out the factors that it must take into account: the public interest; the nature, extent and tone of the allegations; the nature of the information on which the allegations are based; steps taken to verify the information; and whether Gqubele-Mbeki and Harber were given an opportunity to comment on the allegations before the EFF published the statements. The Court accepted that it was in the public interest to know whether there were journalists who worked with StratCom, but stressed that the EFF’s allegations against Gqubele-Mbeki and Harber were unverified and that “no shred of evidence has been advanced by the originator of the allegations” [para. 76]. The Court added that Gqubele-Mbeki and Harber were not given an opportunity to comment on the allegations before the EFF published their statements.
Accordingly, the Court held that the EFF’s defence of reasonable publication failed.
In respect of the defence of fair comment, the Court noted that it must take into account whether the statement was a comment or opinion rather than a statement of fact; whether that comment “expresses an honestly-held opinion, without malice, on a matter of public interest”; and whether the comment or opinion is based on underlying facts that are true and are incorporated into the statement of comment or opinion. [para. 55]. The Court stated that “[t]he cardinal pillar of this defence is that the respondents’ comment or opinion is based on underlying facts that are true” and that the EFF had failed in this respect [para. 79]. The Court acknowledged that the motivation of the EFF was “a noble one in the context of South Africa’s history of racial supremacy, oppression, inequality and lack of freedom” but emphasized that “advancing this objective on the bases of unfounded allegations is … venomous as experienced by [Gqubele-Mbeki and Harber]” [para. 80]. The Court added that the EFF’s conduct may “entrap this country in its ugly past by entrenching mistrust and disunity” and that it “brings the media into disrepute” and may “expose the implicated journalists to a variety of risks” [para. 80]. The Court found that the EFF had not convinced the Court that they hold the opinion of Gqubele-Mbeki and Harber as being StratCom agents honestly, and described the EFF’s failure to verify the allegations (or to accept Gqubele-Mbeki and Harber’s denials of the allegations) as unfair. It added that “[i]t appears that nothing other than the force of the law in the form of a court order would get the respondents to cease from their injurious conduct” [para. 81].
Accordingly, the Court held that the EFF’s defence of fair comment failed.
In ascertaining the quantum of damages to be paid to Gqubele-Mbeki and Harber, the Court referred to the Manuel case where Manuel was awarded R500 000 in damages. The Court noted that this is a high quantum and that the trend from the jurisprudence on damages in defamation cases indicates that a high quantum of damage is a recent phenomenon. The Court acknowledged the aggravating factors that the EFF had failed to concede that their statements were defamatory and had refused to retract and apologize even though there was no evidence of the truth of the allegations. In addition, the Court highlighted that the allegations were harmful to Gqubele-Mbeki and Harber as people but also as senior professional journalists, and had the potential of bringing the media into disrepute and sow disunity and mistrust. The Court referenced the large followings the EFF and Ndlozi have on Twitter and noted that the Twitter accounts had republished the allegations in responses to the initial tweets.
In looking at mitigating factors, the Court expressed concern that Gqubele-Mbeki and Harber only initiated the application four months after the publication of the statements and noted that the readership value of the statements had probably diminished with time. The Court stressed that the fact that Gqubele-Mbeki and Harber did not bring defamation actions against Madikizela-Mandela or the publishers of the documentary had no bearing on whether the EFF and Ndlozi were liable for defamation, but that this would impact the awarding of damages. The Court stated that it is “absurd that [Gqubele-Mbeki and Harber] endure harm when the allegations are peddled by the EFF but are not harmed when they were peddled by Ms Madikizela-Mandela or other publishers” [para. 91]. The Court also acknowledged that Gquebele-Mbeki and Harber “specifically state that they are not interested in the money and, for that reason they intend donating it to journalism related causes” [para. 94].
Having considered the aggravating and mitigating factors and that the “primary purpose of general damages for defamation is not to punish the respondent but to serve as solatium, or consolation, for the applicant” the Court awarded R40 000 (approximately USD 2 600 in 2020) to Gqubele-Mbeki and Harber individually.
The Court further ordered the removal of the impugned statements from both Twitter and the website within 24 hours as their continued presence online was unlawful, and barred the publication of any future statements that implied the journalists “worked for or collaborated with the apartheid government.” The EFF was also ordered to publish a notice on the same platforms that the EFF “unconditionally retract[s] and apologise[s] for the allegations” [para. 96].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the High Court in Johannesburg limited the expression of the political party and its spokesperson, it did also develop the jurisprudence on the limits of the defence of reasonable publication: the Court held that this defence is available only to the media because the media has independent regulation which helps to protect individuals against unjustified and untested allegations made in public.
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