Has coverage of the Ngcuka/Zuma affair verged on the libellous? Greg Hamburger and Toni Erling of RWR explain that the 1998 Bogoshi case gives the media unprecedented leeway on potentially defamatory comment.
Recent events surrounding the Ngcuka/Zuma allegations have highlighted the importance of journalists, editors, publishers and broadcasters understanding what they can publish without being held liable for defamation. So this discussion considers how the traditional defences justifying publication of a defamatory statement have been extended in recent years and, accordingly, have given the media broader scope.
In the past, once it had been established that a statement was defamatory, the traditional defences available were that publication:
was made on a privileged occasion;
amounted to fair comment;
was made by mistake or in jest (in limited circumstances); and
was true and in the public interest.
The situation changed in 1998 with the decision of the Supreme Court of Appeal in National Media and Others V Bogoshi, in which a new defence was added on the grounds of public policy – that of ‘reasonableness’. The court ruled that while it was unacceptable to publish information for the simple purposes of vilifying a person, the press played an important role in the ‘formation” of public opinion and accordingly must be enabled to publish information or criticisms of public, political and economic activity. In its ruling the court stated that the publication of false and defamatory allegations would be permissible if, upon consideration of the facts of the case, it was found to be reasonable to publish those allegations at that time and in those circumstances. Some legal commentators are of the opinion that this decision may have led to the development of some form of ‘media privilege” in South African law.
Essentially, the reasonableness defence is available to the media when it is unable to rely on the defence of truth and public interest. This might occur when it has become apparent that the statements or comments published were in fact untrue, or were published in circumstances of urgency to the public concern. So if the publisher can show that the urgency to publish, due to public concern, outweighed the need to establish the truth of the statements in a positive manner, then the publication may be deemed to be justified. In this regard, the general rule is that the conduct will not be reasonable unless the media had grounds for believing that the defamatory statement was true. The requirements for such a belief are that the reporter:
- took proper steps to verify the accuracy of the material and thereafter did not believe it to be untrue; and
- sought a response from the person defamed by the statements and published any response made. (Obviously, this is not required in circumstances in which it is impractical or unnecessary to give the person a chance to respond).
In this regard, various factors will be considered. These include:
- ‘status’ or degree of public concern in the information;
- political importance of the information;
- nature and reliability of the source of the information;
- nature and reliability of the material forming the basis of the allegations;
- extent to which other material available to the reporter at the time of publication supports the allegations;
- seriousness of the consequences for the person defamed;
- likelihood of the same results being achieved in a less damaging manner;
- whether ‘reasonableness’ grounds existed for a belief that the material allegations of the statement were true;
- steps taken to verify the information; and
- the medium of publication (television is more invasive than print).
Since Bogoshi the law has allowed the press more freedom in its reporting. The media should flourish under these new conditions, but should still take cognisance of the parameters.
Rosin Wright Rosengarten (RWR) is a firm specialising in entertainment and media law based in Johannesburg.