Defamation / Reputation
Afanasyev v. Zlotnikov
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The High Court in Lobatse, Botswana held that the Botswana Guardian newspaper had mounted a successful defence to a defamation claim, arising from an article about a cabinet minister, because its publication was in the public interest. The impugned article alleged that the cabinet minister, who used to be a practicing attorney, had been found guilty of professional negligence. However, the decision on which the article was based concerned her law firm, rather than her personally. In its judgment, the High Court recognised that the South African case of National Media Ltd v. Bogoshi, which introduced the defence of “reasonable publication” into South African law, was “highly persuasive” in Botswana. Nevertheless, the High Court ruled that the newspaper could not avail of such a defence in the present case because it did not seek a reply from the cabinet minister before publishing the story. The High Court did, however, find that the article was of public benefit because the public were entitled to know that a law firm had been found guilty of professional negligence.
On May 17, 2002, the Botswana Guardian – a newspaper owned by CBET Pty Ltd – published an article alleging that Tebele Seretse, the Minister of Works, Transport and Communication, had been found guilty of professional negligence by the Law Society of Botswana for failing to undertake work for which she had been paid by a client and which resulted in the relevant claim being time-barred. Ms. Seretse was an elected politician at the time of the publication and, although assistants at the firm performed the day-to-day work of her firm, she retained sole proprietorship of the firm after her election as a Member of Parliament in 1999.
Eduardo Corriera, a client of Seretse Attorneys, had filed a complaint for professional misconduct with the Law Society of Botswana, claiming that Seretse Attorneys had not pursued a motor vehicle insurance claim that he had instructed and paid for and that, consequently, the claim had become time-barred. The Disciplinary Committee of the Law Society had responded to Mr. Correira by letter on September 4, 2001, informing him that the Committee had not found evidence of professional misconduct but that there had been professional negligence. The Committee advised Mr. Correira to engage other attorneys to investigate a claim of negligence against Seretse Attorneys [p. 1008-1009].
Ms. Seretse acknowledged that she had had an initial consultation with Mr. Correira before she was appointed as a Member of Parliament, but denied ever being engaged by him to prosecute a motor vehicle insurance claim. She also said that she had never been informed by the Law Society that he had made a misconduct claim against her [p. 1009]. She said that once she had joined Parliament she was no longer consulted on the operations of Seretse Attorneys [p. 1010]. In fact, although other attorneys at Seretse Attorneys had handled the matter, Ms. Seretse herself had been significantly involved in the claim Mr. Correira brought to her firm [p. 1019].
Ms. Seretse sued the Botswana Guardian for defamation, arguing that the statements constituted prima facie defamation or that the article created the implication that, among other things, she was negligent and not to be trusted, and that she was “unworthy of her status as a lawyer [and] her appointment as a cabinet minister” [p. 1007]. Ms. Seretse sought P500,000 for harm caused to her reputation.
Before the High Court, the newspaper admitted the publication of the statements but denied that the article was defamatory. In the alternative, the newspaper argued that if the article was found to be defamatory it then denied that it was “aware of the falsity of the averments in the articles; or that they published the article recklessly” [p. 1008]. The newspaper argued that the publication was not reckless as the journalist was well-qualified and responsible. In addition, the newspaper had taken reasonable steps to verify the truth of the allegations as the newspaper had a copy of the letter from the Law Society’s Disciplinary Committee which stated that Seretse Attorneys had been found guilty of professional negligence, and the journalist had verified the letter’s authenticity [p. 1008]. The newspaper submitted that these circumstances demonstrated that the publication of the article had been objectively reasonable and without an intention to defame Ms. Seretse. The newspaper also argued that the article was not published wrongfully or unlawfully because the article was substantially true and was in the public interest [p. 1008].
Ms. Seretse had been involved in a number of controversial activities in the period leading up to the publication of the article. Before publication of the article, no one at Botswana Guardian contacted Ms. Seretse to ascertain the validity of the article’s claims. It was the newspaper’s practice not to contact individuals affected by decisions of legitimate public bodies before publication, as those individuals had appeal processes which they could follow if they disagreed with the decisions [p. 1011].
Dibotelo CJ delivered the judgment of the High Court in Lobatse, Botswana (Court).
The Court held that as the newspaper had not denied the publication of the alleged defamatory statements, and that the statements in the article were not capable of any innocent meaning, the article did constitute prima facie defamation [p. 1014]. He said that “the words complained of were wrongfully published and were published with the intention of injuring, and did injure, the plaintiff’s reputation and good name” [p. 1014]. The Court confirmed that, as a result, the newspaper had to prove on a balance of probabilities that the publication fell within one of the two defences pleaded: namely (i) the publication was reasonable in a democratic society, and, in the alternative, (ii) the statements were true and for public benefit [p. 1014].
The Court examined the newspaper’s argument that they had referred to Ms. Seretse rather than “Seretse Attorneys” because she remained the sole proprietor, notwithstanding the fact that she was not involved in any of the operational work while she was a Member of Parliament. The Court held that it was clear that Ms. Seretse was not the only attorney to have dealt with Mr. Correira’s claim, and that the Law Society’s Disciplinary Committee had found there to be professional negligence on the part of Seretse Attorneys and not Ms. Seretse in her personal capacity. Consequently, the Court found that the newspaper had been reckless in their publication by “singling out the plaintiff as the subject of the Law Society Disciplinary Committee’s finding of professional negligence” [p. 1017].
The Court also noted that the defence of reasonableness in defamation cases required the striking of a balance between the right to reputation and the right to freedom of expression. The Court went on to observe that the defence of reasonableness is “additional to the known traditional defences to defamation such as fair comment, privilege, and truth for public benefit”, and that the defence “evolved in recognition of the critical role the media plays in the dissemination of information to the public in a liberal democratic society in which freedom of expression is enshrined in the Constitution” [p.1017]. In this regard, the Court referred to the South African case of National Media Ltd v. Bogoshi 1998 (4) SA 1196 (SCA) (Bogoshi) which had introduced the defence of “reasonable publication” into South African law, and said that “[a]lthough the decisions of superior courts in South Africa are not binding on the courts of this country, they are highly persuasive and have often been resorted to in situations, such as the present, where there may not be readily available decisions on points that arise in particular cases” [p. 1017]. The Court noted that, in that case, the court took into account the nature, extent and tone of the publication, as well as whether the subject of the publication was given an opportunity to respond and whether there was a need to publish before establishing the truth. The Court concluded that, in the present case, the defence of reasonableness was not available to the newspaper because it had failed to seek comment from Ms. Seretse herself before publishing the article. The Court also held that there was “no evidence from the defendants of pressure or need to publish before they established the truthfulness of their story from the plaintiff whose work place they knew and who was available all the time.” [p. 1018] Therefore, the Court rejected the defence.
The Court then examined the defence that the publication was true and in the public benefit. He referred to the Botswana case of Ghazi Hotel (Pty) Ltd v. Attorney General (No 2)  B.L.R. 452 which had held that the public interest is served where the public is told of something of which they were ignorant but which was in their interest to know, and further that “[i]f they already knew it, it hardly seems that mere repetition can be of value” [p. 1018]. The Court concluded that the underlying facts that the newspaper had reported were true: Seretse Attorneys had failed to pursue a claim on behalf of Mr. Correira, their client, despite his instructions and the firm had been found guilty of professional negligence as a result. He said that the public was entitled to know that Seretse Attorneys had failed to institute one of its client’s claims, and that the client had suffered a loss as a result. He held that “the statements published by the defendants were for the public benefit and/or in the public interest” and that the newspaper succeeded in its defence that the publication of the article was justifiable because it was of public benefit [p. 1020].
The claim against the editor and proprietor of the newspaper was dismissed, and Ms. Seretse was ordered to pay a third of the defendants’ costs.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment has a mixed outcome. On the one hand, the decision recognises the important role the media plays in informing citizens, and that defamatory articles that are in the public interest should be published. In addition, although it does not find that the publication of the article was reasonable, it recognises the persuasive nature of the South African judgment in Bogoshi in Botswana. However, on the other hand, the Court appeared to read the defence of reasonableness in an overly restrictive manner, which could limit the benefit of such a defence to the media. The Court found that the journalists in this case could not be found to be acting reasonably because they did not get the subject’s side of the story. This is in contrast to the judgment of Lord Nicholls in the UK House of Lords case of Reynolds v. Times Newspapers, where he stated that “[f]ailure to report the plaintiff’s explanation is a factor to be taken into account. Depending upon the circumstances, it may be a weighty factor. But it should not be elevated into a rigid rule of law.” On this occasion, the journalists’ failure appeared to be treated as a decisive factor.
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.
The High Court confirmed that the South African Supreme Court of Appeal case of National Media Ltd v. Bogoshi was highly persuasive in Botswana, and it is likely that courts in other southern African countries would also accept the persuasive nature of the Bogoshi judgment.
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