In its recent decision in Khumalo & Others v Holomisa (CCT 53/01 judgment of 14 June 2002), the Constitutional Court considered whether a person claiming damages for the publication of a defamatory statement must show that the statement is untrue. The Court confirmed that there is no such obligation. All that a person suing need allege is that the words are defamatory, were published intentionally, and have the effect of lowering the person’s “status, good name or reputation.” (Neethling & others “Law of Delict” 4th ed (2001) (p.338)) Accordingly, the person may be awarded damages regardless of whether the defamatory statement is true or not. The truth of the statement plays no role in determining whether the statement itself is defamatory.
The truth of the statement plays no role in determining whether the statement itself is defamatory.
Defamation involves a delicate balance between two constitutionally protected rights: freedom of expression and human dignity. The Constitutional Court has confirmed on numerous occasions that freedom of speech is essential in any democratic society. Simultaneously, the defamatory statement injures a person’s status, good name or reputation, thereby impacting on his or her right to human dignity, which is a fundamental value in terms of the Constitution (The Constitution of the Republic of South Africa, Act 108 of 1996, Section 1). As the Constitutional Court held in Holomisa, a person cannot try to uphold a reputation that does not exist, and the element of truth therefore assumes a greater significance from the publisher’s side.If a person injured by the publication decides to claim damages, there are various defences available to the publisher. These are: the defamatory statement is true and was in published in the public interest; it was reasonable to publish the particular facts in the particular way in the particular circumstances; the publication of the statement was privileged; orthe publication of the statement represented fair comment.
In relation to the truth and public interest defence, it is often difficult or expensive to show that the defamatory statement is true. Factors such as protection of sources can play a role. This difficulty has a ‘chilling effect’ on the publication of information because it may cause the publisher to think twice.
Does this difficulty mean that the law of defamation is unconstitutional in that it infringes the publisher’s right to freedom of expression? It does not. A publisher uncertain of its ability to prove a defamatory statement is true can still publish the statement if it can establish that it is reasonable to do so in the circumstances, or if it has available to it one of the other defences. The ‘reasonableness’ defence means that the publisher can publish a statement which is only substantially true if it is reasonable to do so in the circumstances (for example, if a publisher has made reasonable attempts to validate the accuracy of the statement).
A publisher uncertain of its ability to prove a defamatory statement is true can still publish the statement if it can establish that it is reasonable to do so in the circumstances, or if it has available to it one of the other defences.
Ultimately, truth plays a crucial role in defamation cases, but is not absolutely determinative. Although truth is irrelevant in ascertaining whether or not the statement itself is defamatory, it can be crucial to individuals about whom defamatory information is divulged, and who are seeking damages. For any member of the media considering revealing defamatory information about an individual, truth or substantial truth is a big factor in a decision to publish.
Toni Erling is a candidate attorney with Rosin Wright Rosengarten, a firm of attorneys specialising in entertainment and media law based in Johannesburg.