Content Regulation / Censorship, Protection of Sources, Defamation / Reputation
Marena v. Auler
Closed Mixed Outcome
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The High Court of Lesotho found the printer of a newspaper liable for defamation following the publication of an article suggesting that the Prime Minister was dishonest. The printer argued that the article was not defamatory, that the printer itself had not been negligent in printing the newspaper, and that the printer should not be held strictly liable for the printing of a defamatory article. The High Court reasoned that although it is impermissible to hold printers strictly liable for defamation, in this case the printer’s deputy manager had read the article and nonetheless proceeded to print it. Further, under cross-examination the deputy manager agreed that the article was defamatory. In these circumstances the Court reasoned that the printer was negligent and possibly reckless in allowing the printing.
In April 2001 the Mirror newspaper published an article calling the Prime Minister Pakalitha Mosisili, a political opportunist and not a true member of the political party he claimed to represent. The article said that in the 1970s Mosisili had not been arrested for political reasons as he claimed and had been arrested on suspicion of theft and as someone picked up alongside other liberation fighters at a beer house.
Mosisili sued the newspaper for defamation, alleging that the article would be “understood by readers that plaintiff was an opportunist, not a political hero but a pretender and those who regard him as a hero gave him glory he does not deserve, he was a drunk found in shebeens, a criminal, a hypocrite, a corrupt politician and generally a person who cannot be trusted”. An apology was printed in the newspaper, and the Chairman of the Board of the printing company apologized in person to Mosisili. However, Mosisili did not accept the apology as sufficient compensation, and the printer company maintained it was not liable for defamation. The matter came before the High Court of Lesotho in Maseru.
Nomngcongo J delivered the judgment of the High Court.
The Court was required to determine whether the article was defamatory and then whether the printer was liable for the defamation.
The newspaper’s printer was the main defendant in the matter since neither the newspaper nor its editor had filed a plea. Nomngcongo acknowledged that the right to freedom of expression guaranteed by section 14 of the Constitution was only put forward as a secondary defense, and the printer’s main argument was that it should not be strictly liable for the defamatory article “because neither it nor its employees was aware of the particular article or its falsity”, and was “not negligent in not knowing that the said article was false or defamatory of the plaintiff”. The printer argued that it printed a number of newspapers and “could not reasonably be expected to read through all materials that go through [its] presses”.
Mosisili argued that the article was false and he presented detailed evidence to contradict the allegations made in the article. In addition, Mosisili submitted that the article was harming his political reputation. The deputy Prime Minister was called as a witness and stated that he and other members of the party began to doubt the suitability of Mosisili as a leader after the article was published. He said that he “thought there could be no smoke without fire”. In addition, he said that articles like the one published in the Mirror had led to a split in the party.
The printer submitted that Mosisili was being oversensitive to criticism, and argued that either the statements were true or they were not defamatory. The printer called witnesses to explain the heavy printing load they experienced, and submitted that they would not be able to pay damages – particularly as the Mirror newspaper owed them a considerable amount of money. It emerged during the proceedings that the deputy manager of the printing company had read the article and conceded that it was defamatory of Mosisili.
Nomngcongo held that the statements in the article were false, and that they were defamatory of Mosisili.
Nomngcongo then looked at whether the printer should be held strictly liable for the publication of a defamatory article. He referred to the South African cases of Pakendorf v. De Flamingh 1982 (3) SA 146 (A), Suid-Afrikaanse Uitsaaikorporasie v. O’Malley 1977 (3) SA 394 and National Media Ltd. v. Bogoshi 1998 (4) SA 1196 (SCA). Nomngcongo agreed with the approach followed in the Bogoshi case which had held that printers should not be held strictly liable. The Court said that strict liability would require printers to scrutinise all newspapers that went through their presses which would be impractical. It did, however, say that “the media, including printers must still show that they were not negligent in printing any material in order to escape liability [for] publishing defamatory matter”.
However, on the facts of the case Nomngcongo held that as the deputy manager of the printer had read the article he was negligent and possibly reckless in allowing it to be published. He held that the printer therefore had the necessary animus injuriandi.
Nomngcongo considered the protection afforded by the constitutional right to freedom of expression. However he stressed that the right is not absolute, and dismissed the printer’s argument that the publication was in the public interest. Nomngcongo distinguished between “publications that may be interesting to the public and those that are in the public interest” and that statements that are published only to satisfy the public’s desire for scandal are not protected by the Constitution.
Nomngcongo also addressed the argument that Mosisili was oversensitive. He held that “[a] public figure still has a private life that has to be respected and protected and one cannot rely on their reluctance to avoid further adverse publicity and time consuming litigation, in order to avoid liability” and added that “false defamatory allegations against public figures are apt in some case to inflict untold damage upon them and in the political field the ground is strewn with casualties of ruined reputations”.
Nomngcongo also dismissed the argument that the apology made by the printer’s chairman of the board was sufficient. He concluded that “[t]he apology was not genuine and the tender [of damages] was really cocking a snook at the plaintiff”.
Nomngcongo found in favour of Mosisili and awarded damages of 50,000 Maloti (approx. US$6,000 at the time).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court confirmed that a printer of a newspaper cannot be held liable for any defamatory statements contained in the newspaper. However, the Court also held that because an employee of the printer had read the article, the printer had been negligent in proceeding with the printing of the newspaper and was therefore liable for the defamation.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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