Defamation / Reputation
Johnson v. Steele
Closed Expands Expression
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The Western Cape High Court, South Africa held that a series of defamation suits brought against environmental attorneys and activists constituted SLAPP suits and dismissed the suits – a first in South African law. After six attorneys and activists received summons from two, related mining companies seeking exorbitant damages for defamation they filed a special plea, arguing that the suits were an abuse of legal process. The activists argued that the only reason the companies were suing them was to silence their activism and submitted that the Court should dismiss the suits. The Court recognized the importance of public debate on environmental issues, and identified that the companies’ defamation suits were not genuine but were an attempt to silence opposition to their operations. The Court noted that although there was no anti-SLAPP legislation in South Africa, this case “matches the DNA of a SLAPP suit” and ruled in favour of the activists [para. 66].
In 2014 and 2015, John Clarke, an environmental community activist in South Africa, published two e-books detailing the mining activities of Mineral Commodities Limited and Mineral Sands Resources (Pty) Ltd in the Wild Coast, South Africa. Clarke also participated in radio and online interviews, posted videos on YouTube, wrote online journalism pieces and wrote to the Minister of Mineral Resources. On April 2016, Mzamo Dlamini, another activist, and Cormac Cullinan, an environmental attorney, participated in a radio panel debate, of which a representative of Mineral Commodities was also a part, in which Dlamini and Cullinan criticized the mining activities.
On July 18, 2016, Mineral Commodities served summons on Clarke for defamation, seeking damages of R10 million (approximately US$670,000 in February 2021), and on August 18, 2016, on Dlamini and Cullinan seeking damages of R3 million (approximately US$200,400 in February 2021).
On January 25, 2017, Christine Reddell, Tracey Davies (both environmental attorneys) and Davine Cloete (an activist), delivered a lecture series at the University of Cape Town in which they criticized the Mineral Sands Resources mining activities. On May 2, 2017, Mineral Sands issued summons, seeking damages of R1 250 000 (approximately US$83,500 in February 2021) for defamation.
In total, the damages sought in the three suits amounted to R14,25 million (approximately US$950,000 in February 2021).
All the attorneys and activists defended the suits, filing a special plea arguing that the mining companies’ filing of the suits was an abuse of process, designed to silence their vocal opposition to the companies’ mining activities. They argued that the defamation cases were SLAPP suits – “Strategic Lawsuits or Litigation Against Public Participation” – and that a defence of abuse of process to these types of suits should be permitted in South African law.
The Centre for Applied Legal Studies and the University of Cape Town were admitted as amici curiae.
Deputy Judge President, Judge Goliath, delivered the judgment of the single-judge bench of the Western Cape High Court.
The mining companies argued that by focusing on an alleged abuse of process the defendants were relying exclusively on the companies’ motives in bringing the defamation suits rather than on the merits of the defamation claims which, they submitted, was “legally unsound” [para. 10]. They added that, by requesting that the Court not consider the merits, the defendants were seeking to deny the companies’ access to justice. In addition, the companies submitted that any change to South African defamation law to introduce this form of SLAPP defence should be done through Parliament and not the courts.
Reddell and the other attorneys and activists (the defendants) raised a special plea in response to the defamation suits, that the mining companies’ action constituted an abuse of process and a use of the litigation to achieve the “improper end” of silencing activists, and so violated the right to freedom of expression. The defendants argued that the motive in bringing litigation is relevant to the Court’s determination of whether there was an abuse of process and that the companies’ purpose – to intimidate and silence activists – was impermissible. They added that the companies should not be allowed to bring defamation proceedings when they know there is no reasonable prospect of obtaining the damages they seek. In referring to the case of Company Secretary of Arcelormittal South Africa Ltd v. Vaal Environmental Justice Alliance 2015 (1) SA 515 (SCA), the defendants highlighted that the courts have recognized the dangers of secrecy around environmental degradation, and that companies operating in South Africa have to respect the country’s constitutional values. They maintained that “debates arising within the context of mining rights, environmental damage, and economic power of large trading corporations required intense public scrutiny and public engagement” [para. 20].
The Centre for Applied Legal Studies discussed SLAPP suits in other jurisdictions and submitted that this should be accepted as a new defence, distinct from the defence of an abuse of process.
The University of Cape Town focused on the protection of academic freedom, under section 16(1)(d) of the Constitution, and submitted that “academics should not be at risk of liability if a company’s reputation is tainted … and corporations should not be allowed to sue activists for defamation for what they had stated during a course and discussions at the university” [para. 26]. The university argued that there should be a “qualified privilege” for academic speech and that academics needed to be protected from liability to defamation suits brought by corporations. It added that SLAPP suits would have a “chilling effect” and would “deter academics from investigating and challenging harmful conduct” in environmental issues [para. 27].
The Court examined the constitutional framework applicable to this case and indicated that the protection given to freedom of expression under section 16 of the Constitution includes the protection of academic speech, and that section 24 protects the right to “an environment not harmful to one’s health and wellbeing, and also the right to have the environment protected from pollution and ecological degradation” [para. 36]. The Court referred to the South African cases of Khumalo v. Holomisa 2002 (5) SA 401 (CC), South African National Defence Union v. Minister of Defence 1999 (4) SA 469 (CC) and Midi Television (Pty) Ltd t/a E-TV v. Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) which had highlighted the importance of the right to freedom of expression in fostering debate on matters of public importance and that preventing the making of allegedly defamatory statements can only occur when that is needed to prevent “grave injustice” [para. 38].
The Court examined the features of SLAPP suits, described by the Court as “meritless or exaggerated lawsuits intended to intimidate civil society advocates, human rights defenders, journalists, academics and individuals as well as organisations acting in the public interest” [para. 39]. It recognized that the term was first used by Pring and Canan in a 1996 book and acknowledged Pring and Canan’s research which demonstrated that SLAPP suits most often take the form of civil defamation cases, specifically in response to environmental activism. The Court characterized SLAPP suits as ones which use the legal system, “disguised as an ordinary civil claim”, and are often lengthy, expensive and time, energy, money and resource heavy [para. 40]. It added that SLAPP suits have the effect of weaponizing the legal system and shifting matters of public interest into technical legal disputes, and, because the plaintiffs often have significant financial advantages over the defendants and the damages sought are often exorbitant, they chill public debate by sending “a clear message to activists that there are unaffordable financial risks attached to public participation” [para. 42]. The Court highlighted that the simple threat of having a SLAPP suit brought can “engender fear and intimidate the target” [para. 43].
The Court undertook a thorough analysis of the use of SLAPP suits and anti-SLAPP legislation in other jurisdictions. It noted that legislation to counter the use of these suits was first introduced in US states (with 30 states now having anti-SLAPP suit legislation), but some Canadian and Australian provinces have also adopted similar legislation. It recognized that the central tenets of the defence against SLAPP suits in the US are that the suits violate the right of free speech and to petition and described anti-SLAPP suit legislation as being “aimed at providing a quick, effective and inexpensive mechanism to discourage such suits” as they protect public participation, the right to freedom of expression and mitigate against the negative effects of the suits. The Court examined the laws in the US states of Georgia, California, Washington, New York and noted that, although there has been no recognition of SLAPP suits in Europe, there has been some support for anti-SLAPP legislation within the European Union, and referred to the European Court of Human Rights cases of Handyside v. United Kingdom Case No. 5493/72 and Steel and Morris v. United Kingdom ECHR 2005 [para. 51]. The Court also looked at the Canadian cases of 1704604 Ontario Ltd v. Pointes Protection Association 2020 SCC 22 and Grant v. Torstar Corp.  3 S.C.R 640 which highlighted the public interest in preventing SLAPP suits.
The Court identified that there are generally three elements to be proven in a SLAPP defence: “the defendant engaged in public participation on a public issue”; the plaintiff “is pursuing an improper purpose”; and that the “lawsuit is meritless” [para. 45]. The courts apply a “reasonable person” test to determine the plaintiff’s purpose and ask whether a reasonable person would consider that the suit was initiated mainly to discourage public participation, shift activists’ attention away from public participation, or to punish activists for engaging in that public participation. In these cases, the onus first rests on a defendant to prove the improper purpose, and then shifts to the plaintiff to prove that the litigation does, in fact, have “substantial merit” [para. 46]. The Court agreed with the Canadian court in Pointes which had both confirmed it would not hear SLAPP suits “unless the plaintiff can pass a rigorous test to show that it suffered real harm that outweighs the public interest in the expression of those views” and that there is a “right to participate in environmental activism” which served to protect the right to freedom of speech [para. 56].
The Court then discussed how to distinguish SLAPP suits from non-SLAPP civil suits and stressed that this involved a consideration of the “competing policy considerations in determining which activities should be protected from legal action” [para. 58]. It added that as environmental activism necessitates challenging conduct which threatens the environment “it is inevitable that damaging information or claims are likely to emerge” and that it requires the sharing of information “even though such information may not always be correct” [para. 58]. The Court commented that a common feature of SLAAP suits is the plaintiffs seeking an apology from the defendants as an alternative to the damages, and that courts should therefore scrutinize defamation cases to see whether they are brought in a “genuine attempt to protect the reputation of a litigant” [para. 57].
In examining the mining companies’ conduct in the present case, the Court noted that all three cases were instituted at the same time – notwithstanding that Clarke had engaged in activism before. It also identified that the companies had vast financial and human resources and so could write off the litigation costs, whereas the attorneys and activists simply did not have comparable resources, and described this “vertical and unequal power relationship” as “glaringly obvious” [para. 60]. The Court recognized that the “strategy to target a group of environmental activists more or less at the same time may have the effect of intimidating them to such an extent, that they may withdraw from further engagement after being sued for damages” [para. 61]. It stressed the chilling effect is felt by the targeted activists as well as the extended community. The Court also noted that the mining companies were targeting the most vocal activists – in this case, Clarke – by seeking the highest damages against him.
The Court stated that because the mining companies had sought exorbitant damages which could not be paid by the defendants and that they would accept an apology in the alternative, the purpose was not to obtain money – “a signature mark of many SLAPP suits” [para. 62]. The Court concluded that “[t]he conclusion is incontrovertible that the lawsuit was initiated against the defendants because they have spoken out and assumed a specific position in respect of the plaintiff’s mining operations” [para. 62].
With reference to Jameel (Mohamed) v. Wall Street Journal Sprl  1 AC 359 (HL), the Court stressed the importance of environmental activism and public debate on the extent to which mining companies comply with legal obligations – particularly when the companies have such large social and economic power. It noted that SLAPP suits severely threaten the ability to act against corporate misconduct, and that public debate and participation on issues like environmental protection needs to be both protected and encouraged [para. 64].
The Court noted that there is no anti-SLAPP legislation in South Africa and that, consequently, there were limitations on how the courts can respond. But it stressed that this lack of a law could lead to companies abusing the current position, and that “the interests of justice should not be compromised due to a lacuna or the lack of legislative framework” [para. 65].
The Court concluded that it was “trite” that there was an abuse of legal processes when it was used for an ulterior purpose and criticized corporates for misusing the legal system to target their opponents [para. 66]. It held that in the present case “the defamation suit is not genuine and bona fide, but merely a pretext with the only purpose to silence [the mining companies’] opponents and critics” and was therefore an abuse of process [para. 66].
The Court held that it was “satisfied that this action matches the DNA of a SLAPP suit” and that the defendants’ defence was valid. In so doing it stated that “SLAPP suits constitute an abuse of process, and is inconsistent with our constitutional values and scheme”, and reiterated the importance of freedom of expression to democratic society [para. 66]. The Court therefore rejected the mining companies’ argument that they were permitted to sue activists for defamation even if their “only purpose is to silence the activists” as “unsustainable under our constitutional scheme, and which regime advocates for freedom of expression, active public engagement in environmental assessment issues and active public scrutiny of large multinational companies” [para. 20].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment – the first in South Africa to recognize the dangers of SLAPP suits – emphasizes that public debate on matters of public concern is an important element of freedom of expression, and calls on courts to scrutinize the true purpose of defamation suits brought by powerful corporations.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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