Does the law have a sense of humour? So asked Justice Albie Sachs in the introduction to his judgment to the Laugh It Off promotions case in which the court found against the humourless South African Breweries (SAB) that the parodic use of one of its trademarks on a T-shirt should not be interdicted, because the detriment to SAB’s property right was small when compared with the right of free speech.
In setting aside the outdated formalistic approach to intellectual property by the equally humourless Supreme Court of Appeal, Sachs wrote: “The Constitution cannot oblige the dour to laugh. It can, however, prevent the cheerless from snuffing out the laughter of the blithe spirits among us.”
The dour have again prevailed at the appeal court. Consider the following: a learner, aged 15, found a photograph of gay bodybuilders depicted on the internet in a sexual position. The learner manipulated the photograph by replacing the faces of the bodybuilders with those of the school headmaster and a vice-principal. The genitals of the bodybuilders were covered by the superimposition of the school badge. The manipulated photo went viral among the learners of the school.
The vice-principal, who objected to being depicted as being involved in any vice and the wordplay on his surname, claimed damages for defamation and humiliation. This obvious school prank landed in the appeal court.
Judge Louis Harms, who had written the appeal court judgment in Laugh It Off, again wrote the main judgment. He held that publication is defamatory if, on the basis of the understanding of a reasonable person of ordinary intelligence, it had a tendency or was calculated to undermine the good name, reputation or status of the plaintiff. He also found that objectively “there is nothing that — indicates that the photo was perceived as a joke, let alone a legitimate one”. By that he appeared to mean that not even the defendants’ counsel “could explain the joke”, for it provoked not laughter at the humour but rather at the humiliation of the teachers.
In applying this law to the facts of the case Harms appeared to accept that the photo called into question the morality and sexual orientation of the two teachers. The homophobic logic that this was somehow defamatory bears particular pointing out. The plaintiff teacher alleged that the picture was defamatory, in part, because it implied that he had a homosexual relationship with the school principal or was himself homosexual.
The lower court and the SCA paid lip service to the constitutional protection of sexual orientation, but dismissed the point by claiming that ridicule would have followed even if one of the people in the picture was a woman. This missed the opportunity to assert our aspirational constitutional values and state unequivocally that an accusation of homosexuality cannot and should not be defamatory.
Significantly, there is respectable legal authority in support of the argument that, if the defendants prove that they published the defamatory words in jest, where there was no intention to injure the good name or reputation of the plaintiff, they would rebut the presumption in favour of their intention to defame and succeed in their defence.
Relying on a 1916 Transvaal High Court decision, Harms rejected this approach and found that a claim of jest is to be tested objectively. Further, a joke at the expense of someone — making someone the butt of a degrading joke — is likely to be found defamatory. A joke at which the subject can laugh will usually be inoffensive. In this case the learners had intended to ridicule the teachers.
This conclusion was then buttressed with the finding, again not uncontroversial, that the absence of any knowledge on the part of the learners that they had acted unlawfully was no defence to the conclusion that they possessed the necessary intention to defame their teachers.
One of the appeal judges, Judge Ben Griessel, was at least prepared to examine the incongruity of the photograph, which was obviously a manipulated production, and the nature of the audience viewing the photo. Instead of applying the standard of the dour Bloemfontein man (the court was all male), Griessel introduced some plain common sense into the adjudication by questioning whether a reasonable viewer of this photo would consider that it impaired the reputation of the teachers. In other words, its meaning was sufficiently ambiguous to justify a conclusion that the plaintiff teachers had not proved defamation.
But somehow, by a dramatic leap in logic and by forgetting that the defendants were school children and their intention was clearly to engage in a schoolboy prank, Griessel held that subjectively they foresaw that their attempt at humour would degrade the teachers.
Both judgments seek to support their conclusions with references to the philosophy of laughter, itself a source of some mirth to the reader of the judgment because, instead of any analytical rigour, the judgment engages in “Wiki-philosophy” culled uncritically from the internet.
The upshot of an obvious school prank that could and should have been dealt with in terms of a reasonable school disciplinary code has created further uncertainty in an important area of the law relating to defamation. Judges at the second-highest court in the land have shown themselves not only unaware of the contested nature of humour but out of touch with a society that does not reflect the grinding conformity of apartheid sensibilities.
Yet again this judgment calls into question the capacity of the appeal court to promote the empathy, respect and diversity inherent in the spirit and purport of the Constitution. Either that or it reveals how members of that court simply lack childhood memories or a sense of humour.