(John McCann/M&G)
COMMENT
It is a very good thing that Trevor Manuel won his defamation case against the Economic Freedom Fighters (EFF). The implications are many and important, not least the insistence of the court that truth still matters, despite the advent of Twitter.
Because so much has happened in our politics in recent weeks, not enough attention has been paid to this case and so I want to puzzle through the significance of it.
Sure, the EFF is appealing the ruling but, unless and until that appeal succeeds, the high court’s judgment remains the prevailing legal authority on the matter. There are excellent observations made by the court that are worth placing in the public sphere, some of which are observations worth defending regardless of what ultimately happens to this case in the higher courts.
Let’s backtrack a bit.
Essentially, the EFF accused Manuel of nepotism in the appointment of the new South African Revenue Service boss, Edward Kieswetter. The party claimed that Manuel and Kieswetter were related, that they were business associates and that the appointment process was opaque and, effectively, a foregone conclusion to affirm Manuel’s preference.
On social media, the EFF and its leaders further published these claims by deliberately retweeting a statement containing these allegations to millions of people.
When Manuel asked for a retraction of these claims — on the basis that they were falsehoods that defamed him — EFF leader Julius Malema, not untypically, dug in his heels and refused, with vehement determination. That is when Manuel took the party to court and won.
Supporters of the EFF clearly do not give a damn about what the court said because you cannot find any critical discussion about the content of the judgment.
I am not surprised. South Africans often get angry when they do not like the outcome of a court process. That is not a rational way to respond to the work of our judges. It is more appropriate to read and think about the judgment and to locate your anger inside the logic of the court.
I am not suggesting that there are not good legal responses to this judgment. I am, very explicitly, suggesting that, thus far, criticism against the reasoning of the court has not been forthcoming. So, let me explain why, having read the judgment, I found it compelling and important.
First, the EFF had no proof that the claims it made were true. The most effective defence in a defamation case is simply to show that the statements you published about the other party are true. In this case, the defence of truth wasn’t met because the claims were false.
The EFF produced no evidence that Manuel and Kieswetter were related or that they were business associates. Furthermore, as the court helpfully pointed out, it is not true that Manuel was responsible for the process that led to the appointment of Kieswetter. Nor was it true that the process was, in any salient sense, secretive.
For one thing, the president makes the decision and, for another, Manuel recused himself from a decision of recommendations that was at any rate a committee decision. So the suggestion by the EFF that Manuel had the nominal power to act in a nepotistic way is obviously false.
This matters. Too often on Twitter people get away with making claims without producing any evidence. This judgment is one that reinforces the importance of the value of truth. Related to the value of truth, the judgment also underscores the importance of evidence. You must have evidence to show that your claims are substantially true, otherwise resist your instinct to troll someone without any basis in fact.
Second, this judgment sets a precedent. It means, for example, if a politician hates the guts of a journalist and makes a false claim about them on Twitter, any attorney can use the Manuel versus EFF case as a beautiful example of why another court should find in their favour in a defamation case.
It is simply not acceptable to slander people just because social media is so busy that you know it is practically impossible for every single tweet to become the basis of a defamation case. It is, despite that practical limitation, fantastic that an example, based on sound legal reasoning, has been made of the EFF.
Third, the EFF tried to be sneaky and suggested that the publication of its claims was reasonable because it relied on an anonymous source. Here the court was actually very generous and even progressive. The court accepted that not only journalists should be allowed this defence; it is of a kind of public interest to publish certain claims. The principle, however, must be separated from the facts of the case at hand.
Just because we sometimes want to allow for publication, even in the absence of scientific proof, does not mean that people should be permitted to be reckless and malicious. For example, relying on one source, and an anonymous singular source at that, and not bothering to ask the other party whether the claim is true, is clearly malicious. You aren’t truly interested in truth in that scenario. Your aim, patently, is to defame.
This can be extended to other cases in future. You cannot simply say: “My friend, whom I cannot name but whom I trust, told me that so-and-so journalist tried to join our political party.”
By the legal reasoning applied in the Manuel case, that kind of malicious publication of a falsehood — hiding behind a singular anonymous source — can now result in a defamation suit too.
Finally, the court reinforced the critical importance of fair comment. This judgment is not blind to the brilliant and progressive case law in the Constitutional Court that allows you and me to say really harsh things about each other. Of course, we must have thick skins. We shouldn’t have thought police walking around checking our drafted tweets for possible defamation suits before we hit the post button.
The case of McBride vs The Citizen established a wide range of comments we should be allowed to make knowing that free speech rights protect us. This case accepts that judgment and affirms it.
But, here is the bottom line: fair comment must, nevertheless, be based on a foundation of truth. The comments can be of a wide range in scope, but if they are based on falsehoods that you either knew to be false or deliberately took no steps to try to verify when doing so would have been easy, then you should be subject to successful defamation suits.
Free speech matters. What also matters are reputations. Our inherent self-worth as social beings finds expression, in part, in how we are viewed by others. If someone performs a speech act, including tweeting harmful falsehoods that damage your reputation, then they should be subject to private law remedies to correct the harms they caused you.
The EFF should pay the fine meted out, apologise to Manuel and learn lessons from this cheap bit of Twitter politicking. And active users of Twitter, including other politicians, should not be surprised if they find themselves getting lawyers’ letters for tweeting defamatory statements about people they simply do not like.
On another note, we should all stop the lazy habit of not reading judgments, and analysing the quality of the reasoning in them, because we want simply to react to the outcome.