Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Mixed Outcome
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The South African Supreme Court granted damages to an individual listed by a newspaper as a suspect in a bombing on grounds of defamation and impairment of dignity. The newspaper, Cape Times, published two articles following a bombing at a Planet Hollywood. These articles named Walleed Suliman as a suspect, including his photograph in the write-up, and stated that he had been arrested and detained overnight by the police in connection with the bombing. The Court reasoned that these acts were defamatory and, even though press attention was warranted because the public had an interest in the development of the police investigation in this matter, the naming of a suspect prior to a court appearance was a violation of Suliman’s constitutional right to privacy and dignity.
Walleed Suliman brought a suit against Independent Newspapers Holdings Limited, proprietor of the Cape Times newspaper, after the paper published two articles. These articles were published following the 1998 bombing in Cape Town at a Planet Hollywood and named Suliman as a suspect (paras 1, 2, 3). Suliman objected to the first article’s publication of a full color photograph of him in handcuffs with the caption “Walied Suleiman [sic] is led away by a local policeman at Cape Town International Airport.” He also object to its text, which identified Suliman as a suspect who was being held, along with his wife and cousin, after an anonymous tip led the police to believe they were attempting to leave the country (para 6). The second article included similar details of Suliman’s arrest, but also included that the three suspects were actually being held on grounds of violations of the Identification Act 72 of 1986 and the Aliens Control Act 96 of 1991 (para 10).
Suliman, upon finding out about the second article, amended his claim to include objections to what he asserted were false statements in the articles. Namely, he objected to the claim that those investigating the bombing arrested Suliman, his wife, and cousin., Suliman challenged these articles because they did not make clear that he, his wife, and cousin were not arrested in connection with the explosion, but rather were taken into custody in regards to passport irregularities (paras 10, 11). Suliman sought damages on the grounds that these articles were defamatory and violated his rights to dignity and privacy (para 6).
The case came before the Supreme Court of Appeal after Independent Newspapers appealed the lower court’s grant of damages to Suliman. Judge Marais began his analysis with the question of the defamatory nature of the articles’ claims (paras 23, 24). The court began by agreeing with the trial judge that Suliman’s assertion that the articles convey the meaning that Suliman was responsible for the bombings to be untenable (para 24). The court grants that the articles make clear that Suliman was only a suspect, and the question then turns to what a reasonable reader would infer from the article (para 25). The articles reported that a “tip-off” led the police to Suliman. Therefore, the issue of what a reader infers from such wording and the question of whether “the words would tend to lower the plaintiff in the estimation of right-thinking members of society generally” becomes crucial (para 29). The court adopted this reasonable person standard as the test for determining when language is defamatory (para 29).
According to the court, “[t]o say of a man that he has been arrested and detained in custody by the police for questioning as a suspect in the commission of a serious crime is, in my view, defamatory…despite an accompanying statement that the police regard him as a suspect only because of an anonymous tip-off” (para 31). The court further found that “some damage is done to the reputation of a person when the public is told, before a decision to charge him with a serious crime has been taken and before he has appeared in court, that he is under arrest on suspicion of committing that crime” (para 32). The court argued that the damage to one’s reputation cannot be undone, and that mere suspicion creates doubt that cannot be lifted (para 32).
Having decided that the articles were defamatory in that they named Suliman as a suspect, noting that he was held for questioning after being prevented from leaving the country, the court then proceeded to find that these statements were nonetheless true (paras 37, 38).
The court then turned to the question of public interest. The court acknowledged the potential disconnect between what rights should be preserved for the public interest and the constitutionally entrenched rights to dignity, privacy, freedom of expression, and freedom to receive and impart information (para 44). Accordingly, “[t]he weight assigned to each of them in a given situation will vary according to the circumstances attending the situation…it is a matter of ad hoc assessment of what weight should be assigned to the respective rights in the particular circumstance of the case” (para 44).
With this in mind, the court dismissed the idea that it could “never be in the public interest or for the public benefit for the media to name a suspect and publish a photograph of him or her before any court appearance” (para 45). However, in this case, because of the detrimental impact that premature disclosure of a suspect’s identity can have, the court asserted “greater weight should be assigned to the protection of the constitutional right to dignity and privacy and the common-law right of reputation than to the right of the press to freely impart information to the public” (para 47).
The court argued that the press would not be “permanently deprived of the right to identity the suspect,” but rather should have to wait until the first court appearance (para 47). The court was careful not to say that the press was limited in informing the public of basic facts and said that the press was free to state that an “unnamed suspect” was arrested in connection with a crime. The court argued that it was not in the public’s interest or benefit to have the identity of a suspect prior to formal charges (para 48).
The court found that the articles had impaired Suliman’s right to dignity (para 52), but that there was no invasion of privacy because the issues reported on were public matters (para 58). Therefore, the court upheld Suliman’s damages on the grounds of defamation and affront to dignity (para 60). Judge Nugent issued a concurrence that looked further at the issue of truthfulness in regards to claims of defamation (paras 68-82).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision from the Supreme Court of Appeal to grant damages to Walleed Suliman on grounds of defamation and impairment of dignity provided a mixed outcome in terms of expansion of freedom of expression law. Although the case clearly placed limits on the right of the press to disseminate information about suspects in criminal cases, the Court did not bar publication entirely when it held that the premature disclosure of information about Suliman, even on a topic that was of great interest to the public, unjustifiably interfered with his constitutional rights. The Court asserted that this was not an absolute rule, and that the circumstances behind the need for early disclosure of sensitive information should be taken into account when deciding this type of case in future (para 46).
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