Readers are probably bored stiff with academic articles about defamation, but the public loves that area of the law. “Sue for defamation” is something lawyers often hear from disgruntled clients who believe that they have been unfairly treated in the media.
Everybody, from the politician to the proletarian, thinks that success in the case will make them rich, compensating for their reputation and dignity being in tatters after the publication of a defamatory or injurious story. Not to get caught up in technical arguments about the difference between defamation and injuria, suffice to say that defamation is about one’s reputation and injuria about privacy and rights of personality. A recent case supports the theory that suing in defamation or that general area of law might end up costing a whole lot more than it’s worth.
Some years ago, a Capetonian, Walleed Suliman, had his picture published on the front page of the Cape Times with a story linking him to what has become known as the “Planet Hollywood” bombing. The fact was that he had nothing to do with it and wasn’t near the place — his arrest arose out of passport irregularities.
Aggrieved, Mr Suliman issued a summons against the Cape Times and others for a total of R5-million for defamation, impairment of dignity, and invasion of privacy. What would you say this claim is worth? Is R5-million too little, or is it worth R500Â 000, or R50Â 000? Here lies the rub.
Mr Suliman’s first port of call was the Cape High Court, which awarded him R100Â 000 (R90Â 000 for the defamation and impairment of dignity, and R10Â 000 for the invasion of privacy). Now some readers might gasp and think that represents a pittance for the type of defamation involved, but it in fact represents one of the highest awards ever in South Africa for what are called “general damages”. As an aside, if a claimant can show loss of money because of the defamation, so-called “special damages” could be significantly higher, and have been in other cases.
As R100Â 000 represents the high end of the spectrum, and because there were a whole number of factors which the defendants thought might be good grounds to reduce the claim, we can understand why the defendants in the Suliman case approached the Supreme Court of Appeal to have the award reduced.
The legal arguments were complex and the judgment is worth a read, but it’s the result that counts. The highest appeal court reduced the award to R50Â 000. Interestingly, the parties had to bear their own legal costs because of another set of complex legal arguments. So, go figure! At the end of the day, although quite justified by the Court, the man who in the eyes of the public was wrongly linked to the Planet Hollywood bombing got 50 grand and had to pick up his own costs. My guess is that it was a loss situation.
While legally the amount may be justified and while there may be no complaint, doesn’t it seem a little low from a moral perspective? South Africa doesn’t allow a claimant “punitive damages”, where someone can be awarded millions because of the conduct of a defendant. Plaintiffs in our courts are reliant on history and this case has shown that the rand value accorded defamation isn’t high.
Is it out of synch with reality? My guess is that it probably is. So when a client walks into my office and says “sue for defamation” I ask how much they think it’s worth, how much they think they’ll get, and how much they think it’ll cost. Very often people don’t proceed, and this won’t change while the values for claims remain at their current levels. Of course, if there is a defence to the defamation available to the media, then a plaintiff must tread carefully.
Mark Rosin is a partner at Rosin Wright Rosengarten , a firm specialising in entertainment and media law based in Johannesburg.