Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
Closed Mixed Outcome
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The South Gauteng High Court in Johannesburg, South Africa ordered a South African political party to pay damages to a former politician after the party tweeted a statement accusing the politician of corruption and nepotism. The politician had requested that the party withdraw the statement, but when it failed to do so had approached the High Court seeking a declaratory order that the statement was defamatory and an interdict preventing any future, similar statements. The Court held that the failure of the party to withdraw the statement even when it was clear that it was false was an indication of the party’s malice and found that there was no defence to the publication of the statement.
On March 27, 2019 a statement from the South African political party, the Economic Freedom Fighters (EFF) was posted on the EFF official Twitter account. The statement accused former South African Minister of Finance, Trevor Manuel, of nepotism, corruption and clandestine conduct in the appointment of the Commissioner of the South African Revenue Service (SARS). The EFF has a presence at the national, provision and local level in South Africa and Manuel is a former politician in the African National Congress (ANC) who served terms as Minister of Finance, Trade and Industry, and in the Presidency for the National Planning Commission.
The statement related to the recent appointment of a new SARS Commissioner after a Commission of Inquiry had recommended that the incumbent Commissioner be removed and the new Commissioner be appointed through an open and transparent process. The President of South Africa appointed Manuel to sit on the appointment panel, for which he acted as Chair. Manuel did, however, recuse himself from the interview of one of the candidates, Edward Kieswetter, as Kieswetter had worked at SARS during Manuel’s time as Minister of Finance. Kieswetter was later recommended by the panel as the preferred candidate and was then appointed Commissioner of SARS.
The tweeted statement noted that the EFF “objects to the patently nepotistic, and corrupt process of selecting” Kieswetter and described the selection process as having been conducted in secret by the panel chaired by Manuel. The statement referred to the chosen candidate as “a dodgy character called Edward Kieswetter, who is not just a relative of Trevor Manuel, but a close business associate and companion.” The EFF stated that Manuel had previously “unlawfully appointed” Kieswetter as a SARS deputy commissioner and that Kieswetter had been removed from his position at a private company for “alleged corruption and unethical conduct.” The EFF characterized Kieswetter as having a “clear connection to the white capitalist establishment” which meant that he would not “maximally collect taxes.” [para. 32]
The EFF Twitter account had over 725 000 followers at the time the statement was tweeted and the tweet containing the statement was retweeted 237 times. Julius Malema – the President of the EFF – tweeted the statement from his own Twitter account which has over 2 million followers. In addition, the tweet and the statement received media and online coverage. [para. 33]
After unsuccessfully requesting the EFF to withdraw the statement, Manuel sought an urgent declaratory order that the tweet was defamatory, false and unlawful and that the order was necessary to “vindicate his good name and reputation and to finally settle the dispute between him and [the EFF] about the lawfulness of the publication of the impugned statement.” [para. 3] He also sought an order directing the EFF to remove the tweet from all their media platforms; interdicting the EFF, Malema and the national spokesperson Mbuyiseni Ndlozi from publishing the same or similar allegations about him in the future; and ordering the EFF to publish an “unconditional public retraction and apology.” [para. 6] Manuel also sought general damages for the defamation.
Judge Matojane delivered the judgment of the South Gauteng High Court in Johannesburg. The central issue before the Court was whether the EFF had a defence to the publication of the defamatory statement.
Manuel argued that the statement implied that he was corrupt, nepotistic, had participated in a secretive and unlawful process to appoint the new SARS commissioner (which had resulted in the selection of an undeserving candidate), had made unlawful appointments in the past during his position as Minister of Finance, and had a connection to a “white capitalist establishment.” [para. 34]
The EFF submitted that the statement in the tweet was not defamatory, and that, even if it was, they would be protected from liability because it was “either substantially true; constitutes reasonable publication; is the result of fair comment; or is in the public interest.” [para. 8] The EFF did not provide evidence to support the truth of the statement but argued that their actions were reasonable because they had received information from a confidential source which they had no reason to doubt and that publishing this statement was the only avenue for them to make the public aware of their concerns about the appointment of the SARS Commissioner. In oral argument, the EFF argued that the statement was not about Manuel but rather about the “secrecy surrounding the interview process of the SARS Commissioner.” [para. 39] In addition, the EFF argued that the relief Manuel sought was overbroad because he did not identify which specific portions of the statement violated his rights and because the statement did not solely refer to Manuel.
The Court examined the two competing values in this case – the rights to freedom of expression and to dignity (which includes reputation) – and explained that the Court had to determine the appropriate balance between these two rights in respect of the common law of defamation and whether “this balance requires further adjustment.” [para. 2] It emphasized that “[w]hile freedom of expression is a fundamental freedom protected by section 16 of the Constitution, human dignity is stated in section 1 of the Constitution to be a foundational value of our democratic state.” [para. 2]
The EFF had objected to the urgency of the matter, but the Court dismissed this submission and held that as Manuel was accused of “grave allegations of corruption and nepotism … [t]here is no reason why Mr Manuel ought to submit himself to further indignities and assaults on his dignity before this matter can be determined.” [para. 17] The Court stressed that the content of the alleged defamatory statements was a matter of public interest and so it was in the public interest to determine the truth of the allegations on an urgent basis. In addition, the Court stated that “[t]here is also ongoing harm to the well-being of the country as the public labour under the misapprehension that SARS is led by a person who was appointed for nepotistic and corrupt reasons.” [para. 21]
The Court emphasized that “[a]n individual’s reputation is central to his or her sense of self-worth and dignity” but that “[t]he importance of freedom of expression cannot, however, be overstated.” [para. 45] It defined defamation as being the “wrongful and intentional publication of a defamatory statement concerning a person” and stressed that in order to successfully prove defamation an individual must prove that the publication of the defamatory statement referred to themselves which then creates a rebuttable presumption of unlawfulness and intent. The respondent would then bear the onus of rebutting either the wrongfulness or intention requirements. [para. 45]
The Court held that as it was clear that the tweet referred to Manuel, the central issue concerned what the tweet meant and whether it defamed Manuel. The Court stressed that the defamatory nature of a statement “depends on the natural or ordinary meaning of the words, considered in the context of the publication as a whole.” [para. 46]
With reference to the South African Constitutional Court decision in Le Roux v Dey 2011 (3) SA 273 (CC), the Court noted that the question of whether a statement is defamatory requires a two-stage inquiry to, first, determine the ordinary meaning of the statement, and then whether that meaning is defamatory. The Court emphasized that in answering the first inquiry the subjective intent of the author is irrelevant and so the Court is not required to consider what meaning the author sought to convey or whether or not the author believed the statement to be true: the test is “what meaning the reasonable reader of ordinary intelligence would attribute to the statement” [para. 47]. The Court acknowledged that it is difficult to articulate the standard of a reasonable member of the public but described the standard as to “not be so low as to stifle free expression unduly, nor so high as to imperil the ability to protect the integrity of a person’s reputation” [para. 48]. In holding that a reasonable person would understand the tweet to mean that Manuel is corrupt and nepotistic, had conducted a secretive appointment process and was connected to a “white capitalistic establishment” the Court noted that because this statement had been published on Twitter the hypothetical ordinary reader needed to be “a reasonable representative of users of Twitter who follow the EFF and Mr Malema and share his interest in politics and current affairs” [para. 49].
The Court accepted that the statement would lower Manuel’s reputation in the estimation of right-thinking members of society, as the tweet implied that he was “dishonest, unscrupulous and lacking in integrity” [para. 51]. The Court rejected the EFF’s submission that because Manuel had accepted the position as chair of the appointment committee he was in the “political eye” and must therefore “display a greater degree of tolerance to criticism than ordinary private individuals” [para. 52]. With reference to the South African case of Mthembu-Mahanyele v. Mail and Guardian 2004 (6) SA 329 (SCA) the Court stressed that “high profile public office bearers are also entitled to a right to dignity and to not have their reputations unlawfully harmed” [para. 52]. Accordingly, the Court held that the tweet was per se defamatory and that the EFF bore the onus of demonstrating that the publication lacked wrongfulness or intention.
The EFF had argued that the statements in the tweet were true and in the public interest. The Court rejected the claim that the appointment process was secretive and held that the EFF had not been able to demonstrate the truth of the “sting of the charge” – that Manuel was corrupt and nepotistic – as the concerns they raised were peripheral facts and unrelated to that sting of the defamatory statement [para. 56]. The Court also dismissed the EFF’s claim that as Manuel had recused himself from Kieswetter’s interview he must have been sufficiently close to him to justify the claim of nepotism. The Court stated that Manuel had explained that he was not related to Kiestwetter and noted that the simple fact that Manuel and Kieswetter had had a prior professional relationship did not form the basis of a reasonable apprehension of bias. The Court emphasized that the Repetition Rule – which treats an individual who repeats a defamatory allegation as if that individual had made the allegation – meant that the EFF was not absolved from liability because they claimed they had published the statement with the honest belief that the information they received from a source was correct.
In response to the EFF’s defence that the publication was reasonable because it was based on disclosed information that they had no reason to doubt and that the disclosure of material of public interest should be encouraged, the Court stressed that the protection of whistle-blowers “does not protect people who publish their unsubstantiated defamatory disclosures worldwide” [para. 61]. In addition, with reference to the South African case of National Media Ltd v. Bogoshi 1998 (4) SA 1196 (SCA), the Court noted that while the defence of reasonable publication is available to the media that defence cannot be used by the media to lower their normal standards of care prior to publication
The Court acknowledged that social media platforms have enabled ordinary members of the public to have “publishing capacities capable of reaching beyond that which the print and broadcast media can” [para. 65] and that an ordinary person communicating on social media is capable of reaching millions of individuals quicker that printed copies of newspapers. As a result, the Court noted that “[t]here is no justification as to why the press should enjoy the privilege of freedom of expression greater than that enjoyed by a private individual” and that there is “no justification for limiting the defence of reasonableness as it pertains to both wrongfulness and fault to the media only” [para. 67]. However, the Court held that in the present case the EFF could not rely on the defence of reasonable publication because they had “failed to show that it was reasonable in the circumstances to publish the particular facts, in a particular way and at the particular time” [para. 68]. The Court found that the EFF had not taken reasonable steps to verify the truth of the allegations of the relationship between Manuel and Kieswetter and had not allowed Manuel the opportunity to respond to the allegations.
The Court rejected the EFF’s defence that the statements were fair comment on the grounds that the EFF had failed to demonstrate the truth of the facts underlying the claim that Manuel was corrupt and nepotistic. In addition, the Court held that the EFF’s conduct was “actuated by malice” as the statement had been published “with reckless indifference as to whether it was true or false” and the EFF had refused to take down the statement even when it had been shown to be false [para. 66]. It added that “[t]here can never be a justification for the ongoing publication of a defamatory statement which has been revealed to be untrue unless the principal purpose is to injure a person because of spite or animosity” [para. 66].
The Court held that the defence that the statement was made in the public interest failed because “[t]he mere fact that the content of the statement relates to issues that are in the public interest is not determinative in itself” as the defence of public interest can only apply “if other defamation defences are in the public interest, e.g. the defence of truth and fair comment” [para. 66].
The Court held that the allegations made by the EFF in its statement were defamatory and false and that the publication of the statement was unlawful, and interdicted any future publication of statements implying that Manuel was corrupt or nepotistic in the appointment of the SARS Commissioner. It ordered the EFF to remove the statement from all media platforms and to publish a notice on all platforms on which the statement had initially been published which unconditionally retracted the statement and apologized for the allegations made about Manuel.
In quantifying the damages the Court stated that in determining the seriousness of the defamation it had taken into account the “the nature of the defamatory statement, the nature and extent of the publication, and the reputation, character and conduct of the parties” [para. 69]. The Court held that the EFF, Ndlozi and Malema’s conduct had been “egregious and hurtful” and referred to tweet written to a journalist in response to Manuel’s request for the withdrawal of the allegations in which Malema had said that Manuel “can go to hell, we are not scared of him” [para. 70]. The Court noted that the EFF’s motive and conduct were relevant and that their stubborn refusal to withdraw the statement “collectively establish the existence of actual malice and a desire to hurt Mr Manuel in his person, and professionally, through the widespread dissemination of the defamatory statement” [para. 71]. Accordingly, the Court issued a punitive costs order, and awarded R500 000 (approximately USD35 000 as of June 2019) in general damages to Manuel.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The North Gauteng High Court found in favour of the politician seeking the declaratory order that the impugned statement was defamatory, but did note that, given the reach of social media, the defence of reasonable publication should not be limited to the media as “[t]here is no justification as to why the press should enjoy the privilege of freedom of expression greater than that enjoyed by a private individual.” [para. 67]
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.
Let us know if you notice errors or if the case analysis needs revision.