Mungo Soggot
The Supreme Court of Appeal has ushered in a new era of press freedom with a ruling that journalists can escape liability for false and defamatory facts by showing they were reasonable or careful.
The landmark judgment in favour of City Press will release South African journalists from a long list of rulings which held them automatically liable for wrong information, forcing them to prove the truth of their material.
“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 at the particular time,” said Judge Joos Hefer, the author of the judgment.
Judge Hefer said that in addition to this new defence, journalists can escape liability by showing that they were not negligent in publishing information, even if it turned out to be wrong.
In what some media lawyers think is an equally significant development, the court also opened the door to a more general defence for journalists: that the media has a duty to provide the public with information that is in the public interest.
“We must not forget 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 and thus to contribute to the formation of public opinion,” the court said.
The judgment, handed down in Bloemfontein this week, represents an unprecedented acknowledgment by the appeal court of the importance of freedom of expression.
Media lawyers welcomed the judgment this week as a watershed in South African media law, which has now been brought in line with jurisdictions that were more sensitive to the importance of press freedom.
The judgment means irresponsible and incompetent journalists will still be held liable for their false, defamatory material, but that journalists who can show they were not negligent in publishing such material can escape liability.
The court ruled that it is the duty of the journalist – and not the plaintiff – to show that he or she was not negligent. “In my judgment it is for the defendant to prove all the facts on which he relies to show that the publication was reasonable and that he was not negligent,” the judge said.
Judge Hefer’s judgment overrules a line of cases which said that newspapers should be “strictly liable” for their defamatory and wrong information.
“If 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,” Judge Hefer said.
The most notorious of the previous cases was that of Lothar Neethling, the police’s former chief poison boffin, who won a defamation action against Vrye Weekblad and The Weekly Mail at the appeal court. This case has been regarded as the high water mark of the appeal court’s conservative stance on defamation and dubbed the “poisoner’s law”.
Ironically, the Neethling judgment – which effectively killed the Vrye Weekblad – was written by Judge Gustav Hoexter, who heard this week’s case with Judge Hefer and three other appeal court judges. Judge Hefer did not refer once to Neethling in this week’s case, which concerned allegations in City Press about the conduct of a Pretoria attorney, Nthedi Bogoshi.
David Dison, a media law expert, said the judgment marked a turning point in South African press law. He said the ruling had three crucial legs.
Firstly, it introduced the “reasonableness” test for the first time in the appeal court. Secondly, it ruled that journalists can also escape liability by showing they were not negligent – a defence which clearly overlapped with the “reasonable” test.
And thirdly, Dison said, the court appeared to have revived a “qualified privilege for journalists. It has acknowledged that the media has a duty to provide information that is in the public interest and that there is a corresponding interest on the part of the public to receive that information.”
Dison said that in the past newspapers had to fight to show that they had a duty to the public, noting that in the Neethling case, the appeal court said: “The common law does not recognise a duty- interest relationship between a newspaper and its reader sufficient to support qualified privilege.”
Lawyers said it was striking that Judge Hefer and his fellow judges had made their leap on the basis of an interpretation of common law in South Africa and other jurisdictions, rather than relying on the Constitution.
South Africa’s Constitutional Court has previously indicated that it does not rate the freedom of expression more highly than other fundamental rights.
Judge Hefer noted that the right of freedom of expression was equal to the rights to privacy and dignity – unlike the United States Supreme Court which rates the freedom of expression more highly. Lawyers said the primacy of freedom of expression may still have to be tested in another case.
City Press, and its owner National Media, were represented by advocates Schalk Burger, SC, and Derek Spitz.
l The Inkatha Freedom Party this week served summons on the Mail & Guardian for R250 000 for a series of articles about corruption in the KwaZulu-Natal government