Defamation / Reputation
Commonwealth v. Pon
Closed Expands Expression
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The South African Supreme Court of Appeal held that the media can raise a defense of “reasonable publication” in defamation cases and that, on consideration of the specific circumstances of the case, a Court can find that the publication of defamatory statements was not unlawful.
The City Press newspaper had published a series of articles between November 17 1991 and May 29 1994 alleging misconduct on the part of an attorney. The newspaper’s initial defense was that the statements were true, but it then sought to amend its plea to introduce a defense that it had not intended to defame the attorney, had not acted negligently and that, in terms of the protection for freedom of expression in the newly adopted Interim Constitution, the publication of the defamatory statements was not unlawful.
The Court said that National Media’s defense was novel in that it challenged the unlawfulness and not the fault element of defamation by arguing that the publication was neither reckless nor negligent and there was no knowledge of the falsity of the statements. The Court reasoned that it was appropriate to follow the “reasonable conduct” approach adopted in the U.K., Australia and the Netherlands so that common law and the newly introduced constitutional protection for freedom of expression provided for a defense available to the media, namely that the publication of defamatory statements could, in the circumstances, be reasonable and therefore not unlawful. In this way the Court developed the common law and introduced a “reasonableness defence” into South African defamation law. The Court held that “the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if … it is found to have been reasonable” (p. 30-31).
Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.
National Media – the owner and publisher of the weekly newspaper the City Press – had been sued for defamation alongside the editor, distributor and printer of the City Press. The newspaper had published a series of articles between November 1991 and May 1994 which alleged that Nthedi Bogoshi, an attorney in South Africa, had defrauded his clients, had touted for business and was under investigation by the Auditor-General.
In the High Court, National Media had initially pleaded that its defense to the suit was that the alleged defamatory statements were true. It then sought to amend its pleadings, and introduce three additional defenses. The crucial aspects of these additional defenses were that that newspaper had not intended to defame Bogoshi, that it had not acted negligently and, given that the Interim Constitution (Constitution of the Republic of South Africa, Act 200 of 1993) had recently been adopted, that ”the publication of the articles was lawful and protected under the freedom of speech and expression clause in the Constitution” [p.3].
The common law governing defamation in South Africa at the time provided for strict liability for newspaper owners, editors and printers, but not distributors. The High Court refused to amend the plea, holding that the sole defense available to the media was that “what they had published was true” [p. 8] and National Media appealed to the Supreme Court of Appeal.
The appeal was heard by a full bench and Hefer JA delivered the unanimous judgment. He confirmed that the question the Court was required to determine was whether the amended plea put forward by National Media should be allowed [p. 3].
Hefer set out the requirements for a finding of defamation, and said that there are two elements: the subjective element of fault (in the form of amimus injuriandi) and an objective element of unlawfulness. A plaintiff must allege unlawfulness and fault, and the defendant then bears the onus to “plead facts which legally justify his denial of unlawfulness or animus injuriandi” [p. 5]. The separation of these two elements was important because, he said, the High Court had incorrectly characterized the newspaper’s defense as challenging the fault element rather than the unlawfulness of the publication [p. 5-6].
National Media argued that its publication of the articles was not unlawful in terms of the protection provided by section 15 of the Interim Constitution. It submitted that it had been unaware of any falsity in the articles and that it did not publish anything recklessly or negligently [p. 5]. It argued that in light of that, the publication of the articles was objectively reasonable and was without animus injuriandii. In the alternative, National Media submitted that the publication was in the public interest [p.6].
Hefer recognised that this was the first time a court in South Africa was required to consider a defense in circumstances (namely, that the publication was neither reckless nor negligent and there was no knowledge of the falsity of the statements) that meant the publication was lawful. The High Court had held that the only way for National Media to escape liability was to demonstrate the truth of the statements [p.8], but Hefer said that there was no reason why the defenses available to a defendant should be limited [p.8]. He explained that the novelty of the defense raised by National Media was that it was a defense to the unlawfulness and not fault element of defamation.
Hefer provided a detailed analysis of the development of South African defamation law and jurisprudence which had culminated in Suid-Afrikaanse Uitsaakorporasie v. O’Malley 1977 (3) SA 394 (A) and Pakendorf v. De Flamingh 1982 (3) SA 146 (A). The O’Malley case had held that news distributors could avoid liability for defamation by demonstrating a lack of negligence but that owners, editors, publishers and printers of newspapers “ought to be liable in accordance with the law in England where liability arises from the publication of defamatory material and not from any particular intention and where these members of the press are liable for defamation of which they were not aware” [p.11]. This meant that, in South African law, newspaper owners, editors and printers (but not distributors) were strictly liable for the publication of defamatory statements.
National Media argued that the strict liability rules in South African defamation law were unconstitutional on the grounds that they infringed the right to freedom of expression protected by the newly enacted Interim Constitution. The High Court had ruled that the Interim Constitution had not altered the strict liability of the media in respect of defamatory publications.
In his judgment, Hefer criticized the reasoning of the Courts in O’Malley and Pakendorf and said that they had applied the English principle of strict liability without recognizing that the British legislature had partially rejected that doctrine, and that the Courts had failed to undertake a balancing exercise between the right to freedom of expression and reputation.
In balancing the two interests, Hefer said that “[i]t would be wrong to regard either of the two rival interests with which we are concerned as more important than the other” [p. 17]. He quoted the South African case of Argus Printing and Publishing Co Ltd v. Esselen’s Estate 1994 (2) SA 1 (A) and the Canadian case of Hill v. Church of Scientology of Toronto (1986) 26 DLR (4th) 129 which discussed the importance of a reputation, and the U.S. case of Palko v. Connecticut (1937) 302 US 319, the European Court of Human Rights case of Handyside v. United Kingdom (1976) 1 EHRR 737 and the Canadian case of Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd (1987) 33 DLR (4th) 174 in support of the right to freedom of expression. Hefer also referred to the South African case of Government of the Republic of South Africa v. Sunday Times Newspaper 1995 (2) SA 221 (T) which had emphasized the important role the press plays in a democracy.
Hefer then reviewed how the two interests had been balanced by South African courts. He said that the Court had been wrong in Argus Printing and Publishing Co Ltd v. Esselen’s Estate 1994 (2) SA 1 (A) when it had found that “stereotyped defences like truth and public benefit, fair comment and qualified privilege provide adequate protection for the freedom of the press” [p.21].
In determining the suitability of a strict liability doctrine in the case of media defamation, Hefer said that the justification provided in the O’Malley case that strict liability was necessary because it was often difficult to determine exactly who would be at fault in publishing a defamatory statement was “untenable” because compared to the injustice experienced by the media if that is accepted “the harm done to the victim of an honest mistake becomes less significant” [p.22]. He acknowledged the argument that false statements have no utility or benefit, and that they only injure an individual’s reputation, but he also recognized that “it is the right, and indeed a vital function, of the press to make available to the community information and criticism about every aspect of public, political, social and economic activity” [p. 23], and referred to the British case of Reynolds v. Times Newspapers Ltd .
Importantly, Hefer said that although South Africa was a new democracy at the time of the judgment, that did not mean that freedom of expression had not been protected in the past, although he did recognise that “its full import, and particularly the role and importance of the press might not always have been acknowledged” [p. 25]. He concluded that “[i]f we recognise, as we must, the democratic imperative that the common good is best served by the free flow of information and the task of the media in the process, it must be clear that strict liability cannot be defended” [p. 25]. He said that “nothing can be more chilling than the prospect of being mulcted in damages for even the slightest error” [p.25-26].
Hefer said that strict liability has been rejected by the U.S. (in Gertz v. Robert Welch Inc 418 US 323), in Germany (in BVerfGe 12 113), the European Court of Human Rights (in Lingens v. Austria (1986) 8 EHRR 407), the Netherlands, England, Australia and New Zealand (in Lange v. Atkinson 1997 (2) NZLR 22). He concluded that the Court in Pakendorf was wrong in finding that there should be strict liability for defamation.
Hefer then went on to examine National Media’s defense that the publication was lawful and protected by the Constitution’s protection of freedom of expression. He said that the defense would require the Court to develop the common law governing the lawfulness element of defamation. He referred to the O’Malley case which had held that “it is the task of the Court to determine in each case whether public and legal policy requires the particular publication to be regarded as lawful” [p.9]. Hefer recognized that the South African standard of lawfulness must be judged according to the legal convictions of the South African context, but said that it was appropriate to follow the approach adopted in the U.K., Australia and the Netherlands.
The Australian cases of Theophanous v. Herald & Weekly Times 1994-1995 182 CLR 104, Stephens v. West Australian Newspapers Limited (1994-1995) 182 CLR 211 and Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520 had introduced the “reasonableness of conduct” requirement, and that the Reynolds test established in the U.K. was “more concise than, but does not differ materially from, the test of ‘reasonableness of conduct’ as expounded in Australia (p. 29). He also referred to the similar position in the Netherlands.
Accordingly, Hefer stated that “the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time” [p. 30-31]. He then discussed what factors should be taken into consideration when determining the reasonableness of the publication, and said that “account must be taken of the nature, extent and tone of the allegations” [p.31]. He referred to the South African case of Pienaar v. Argus Printing and Publishing 1956 (4) SA 310 (W) which had said that “greater latitude is usually allowed in respect of political discussion” (p.31), and that “the nature of the information on which the allegations were based and the reliability of their source, as well as the steps taken to verify the information” [p.31] will also inform the determination of reasonableness. Hefer was careful to state that “members of the press should not be left with the impression that they have a licence to lower the standards of care which must be observed before defamatory material is published in a newspaper” [p. 31].
Hefer said that the considerations in determining the reasonableness of a printer will be different to that of other media bodies [p. 32)]. He agreed with the reasoning in the Australian case of Lange that the media should not be treated the same as individuals when it comes to defamation because the harm caused by defamation in the media is greater than when the defamation is on a smaller scale. He said that this means that the media should bear the additional burden of having to demonstrate that they were not negligent (in addition to demonstrating that they did not have animus injuriandi) and that this is not inconsistent with the protection of freedom of expression [p. 35-36].
Hefer continued to make a clear distinction between the fault and lawfulness elements of defamation, and said that it was necessary to answer the question left open in Pakendorf “namely, whether absence of knowledge of wrongfulness can be relied upon as a defence if the lack of knowledge was due to the negligence of the defendant” [p.34]. He then said that if defendants were permitted to use this defense “it would make nonsense of the approach which I have indicated to the lawfulness of the publication of defamatory untruths” [p.34-35)] He said that the “indicated approach is intended to cater for ignorance and mistake at the level of unlawfulness; and in a given case negligence on the defendant’s part may well be determinative of the legality of the publication … [and so] a defence of absence of animus injuriandi can plainly not be available to the defendant” [p.35].
Hefer explained that his approach had developed the common law by correcting what he believed was a wrongly decided judgment in Pakendorf. However, notwithstanding that he had based his finding in the common law, he said that this common law principle achieved the required constitutional balance between the rights to freedom of expression and dignity [p. 43]. He criticised the High Court decision in Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) as giving too much emphasis to the right to freedom of expression and not enough to the right to dignity. He said that such an approach did not give full and proper effect to the spirit of the Interim Constitution [p. 43-44].
Accordingly, Hefer held that the common law and the newly introduced constitutional protection for freedom of expression provided for a defense available to the media, namely that the publication of defamatory statements could, in the circumstances, be reasonable and therefore not unlawful.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by creating the defense of reasonable publication for media defendants in defamation litigation. The Supreme Court of Appeal balanced common law and the principles of the newly adopted Constitution to provide for the defense which is now known as “the Bogoshi Defence”. It has become extremely influential having been adopted by various other southern African countries.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Sections 10, 15, 33, 35
Case significance refers to how influential the case is and how its significance changes over time.
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