Defamation / Reputation
Afanasyev v. Zlotnikov
On Appeal Expands Expression
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In this case, a newspaper called The Nambian published a feature about a former head of training and Standards at the airline Air Namibia, Alois Nyandoro, who made serious allegations of attempting to falsify information against him. He sued the newspaper for defamation and won. The newspaper, prior to publication, had emailed Nyandoro questions, which the judge ruled as not specific enough and not clearly indicating that Nyandoro would be specifically mentioned in the article in connection with the serious allegations made against him. The judge held that this, combined with factual errors in the article, made the article defamatory and made publication of the article unreasonable. Nyandoro was awarded 80,000 Namibian dollars in damages plus 20% interest a year from the date of the judgment.
An article was published in the newspaper The Namibian on the 11th of March 2010 which reported that a flight instructor at Air Namibia had resigned from his post due to pressure from the plaintiff, Alois Nyandoro to falsify information for a South African to get a local flying license.
The plaintiff argued that the words and allegations in the article were wrongful and defamatory or alternatively false and defamatory as they were intended to be understood by readers to mean that Nyandoro was involved in fraudulent attempts to falsify documentation and was prepared to falsify important information that would place passengers in mortal danger when travelling in an aeroplane piloted by an unqualified pilot. He argued that the implication of the article, among other things, was that he abused his position as a Senior Manager of Air Namibia (Pty), was a corrupt manager, had no respect for the law or for following proper procedures for the certification of pilots, was not a man of integrity and placed the reputation of Air Namibia and its reputation for flying standards into disrepute. He argued that the article was written with the intention to defame and injure his reputation, and that he had indeed been defamed and suffered injury to his name and reputation and therefore was seeking damages.
The newspaper denied that the article was published wrongfully, wilfully, negligently or maliciously. It was argued that the article contained what was essentially the truth. The newspaper argued that the publication was in the public interest and any allegations made that were in the nature of a comment was fair and reasonable in the circumstances as they were based upon facts which were essentially the truth. The newspaper raised the defense of qualified privilege stating that the issuing of commercial pilots licenses and their validation is a matter of high public interest and as such the public had the right to be informed and the media had the corresponding right or duty to keep the public informed of allegations of any irregularity and/or unlawful conduct in this regard, especially in respect of pilots of the national airline. The Newspaper also raised the defense of reasonable publication holding that all statements made were reasonable in the circumstance and the paper acted without negligence and in good faith.
The judgment was delivered by Judge Kato van Niekerk, who began by stating that the approach taken in determining whether a defamatory meaning is to be attached to a newspaper article is the objective standard which asks what the reasonable reader of normal understanding and development would understand when he or she reads the article. She held that to the reasonable reader, all the meanings and imputations complained of by the plaintiff, such as that he was a corrupt manager engaging in dishonest behavior and without respect for the law or for following proper procedures, had been established. The question then was whether they tended to lower the plaintiff in the estimation of right-thinking persons generally i.e. harm his reputation, which the judge held she had no doubt that they do and found it unnecessary to elaborate any further on the issue.
The Judge agreed with the defendants that the issues raised in the article were in the public interest, that the Namibian public had a legitimate interest in being informed about such issues and that the newspaper had a duty to report on such matters. The judge pointed out that according to case law when the sting of a publication is true and the publication thereof is in the public interest a defamatory allegation can be substantially justified notwithstanding that a defendant may fail to prove the literal truth or all the statements of fact contained in the defamatory matter. However, the judge held that, in this case, the defendants had not proved that the defamatory statements were true in so far as they made imputations that the plaintiff was involved in falsification of information, greater care should have been taken to verify the accuracy of some factual statements in the article.
The Judge held that the newspaper, in soliciting statements from Nyandoro through email, should have clearly indicated to him that the intention of the newspaper was to publish an article containing specific allegations that he had put “persistent pressure” on a flight skills examiner to falsify information that would have enabled the South African pilot to continue to fly for Air Namibia after the Directorate of Civil Aviation (DCA) had withdrawn the Namibian validation of her South African pilot’s license. Finally, the judge held that the cumulative effect of the shortcomings in the manner in which the defendants went about investigating and reporting the story rendered the publication of the defamatory paragraphs of the article unreasonable.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this case, the court found that the plaintiff was defamed by a newspaper. The Court conceded that the issues involved were in the public interest and the newspaper had a duty to report on such matters. Nonetheless a finding of defamation was made on the grounds that the newspaper did not make a good enough effort to verify certain factual allegations and because in engaging with the plaintiff, who responded to the newspapers questions in good faith, did not make it clear that the intention was to specifically implicate him with regard to the serious allegations made against him. This decision is expansive of expression as it demonstrates a court striking an appropriate balance between freedom of the press and the right to one’s reputation.
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.
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