The South African media: free at last!

Supreme Court loosens strict liability noose

National Media Limited & Others v Bogoshi
Unreported:
South African Supreme Court of Appeal
29 September 1998

The South African Supreme Court of Appeal has in a recent landmark decision significantly altered liability of the media in defamation actions, rejecting the doctrine of strict liability for media defendants and introducing the availability of a defence of absence of fault.

Background and facts

The Bogoshi case came before the Supreme Court of Appeal as an appeal against the judgment of the Witwatersrand Local Division in Bogoshi v National Media Ltd and Others 1996 (3) SA 78 (W). In that case, Eloff JP had rejected an application by the media defendants to amend their defence to a defamation action launched by Bogoshi for a series of articles published in a local weekly newspaper between 1991 and 1994 on the basis that the defences sought to be added to the plea were not good in law. The proposed amendment sought to introduce additional defences as alternatives to the defendants' primary defence of truth for the public benefit. The most important of these defences was that the publication of the articles by the newspaper was lawful and protected under the freedom of speech and expression clause in the Constitution of the Republic of South Africa, Act 200 of 1993 ("the 1993 Constitution"). Eloff JP had refused the amendment on the basis that the common law of defamation had achieved an equitable balance between freedom of speech and the protection of a person's reputation and that the 1993 Constitution did not affect the common law balance. The issue which the Supreme Court of Appeal had to decide was whether the proposed defence was good in law.

Decision

The defence which the appellants sought to rely on, as amended on appeal, proposed that the lawfulness of the publications stemmed from, inter alia, the constitutional guarantee of freedom of expression, and the allegations that the defendants were unaware of the falsity of the averments, did not publish the articles recklessly, were not negligent in publishing any of the articles, that the publications were objectively reasonable, and that the articles were published without intent to defame. In the alternative, the defence alleged that, in addition to the circumstances stated above, the articles concerned matters of public interest which were protected by the freedom of expression clause in the 1993 Constitution.

The issue which fell to be decided was whether the circumstances alleged in the third defence were capable of justifying the averment of lawfulness. If so, the defences in a defamation action would not be limited to the traditional defences of truth for the public benefit, qualified privilege and fair comment. Hefer J.A., writing for a unanimous bench, confirmed that the traditional defences of truth for the public benefit, fair comment and privilege are not a closed list and that the lawfulness of an act or omission is determined by the application of a general criterion of reasonableness based on considerations of fairness, morality, policy and the court's perception of the legal convictions of the community (p. 4).

Hefer J.A. proceeded to consider the common law of defamation regulating media defendants as it had been interpreted by previous courts and commented on the applicability to media defendants of the two traditional legs of defences available to non-media defamation defendants, namely absence of fault and grounds of justification.

Absence of fault

The first question which the court had to decide was whether the Pakendorf v De Flemingh 1982 (3) SA 146 (A) was correctly decided in its imposition of strict liability on media defendants (i.e. that such defendants could not rely on a defence of absence of fault). The answer to this question, held the court, depended on whether the balance struck between the rival interests of the plaintiff's reputation and the defendant's freedom of expression was properly evaluated in Pakendorf. That case had given no indication that the court had engaged in a weighing of the respective interests, and it was not evident from the judgment that freedom on expression had received any attention (p. 7). In an important dictum which clarified a judicial debate that had raged prior to the judgment, Hefer J.A. expressed the court's approach to the weighing of the contesting values as follows:

"[I]t would be wrong to regard either of the rival interests with which we are concerned as more important than the other" (p. 7). The court emphasised both the importance of reputation as a reflection of the innate dignity of the individual, and the importance of freedom of expression as one of the essential foundations of a democratic society. In respect of the rationales that had been proffered for the doctrine of strict liability of the media, the court held that the social utility of the doctrine in inhibiting the dissemination of harmful falsehoods is a potent consideration. However, "we must not forget that it is the right, and indeed a vital function of the press to make available to the community information and criticism about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion… Conversely, the press often becomes the voice of the people - their means to convey their concerns to their fellow citizens, to officialdom and to government."

The court concluded that the acceptance of the democratic imperative that South African society was best served by the free flow of information, and that the media had a vital function in this regard, had the inevitable implication that strict liability could not be defended and should have been rejected in Pakendorf. "[N]othing can be more chilling than the prospect of being mulcted in damages for even the slightest error". Pakendorf should therefore be overruled, as it was clearly wrong.

Having rejected the doctrine of strict liability, and thus introduced the availability of the defence of absence of fault to a media defendant, the court went on to consider what the content of that defence should be. The court accepted that there were compelling reasons for treating the media differently from ordinary members of the public, and thus that the absence of animus injuriandi (ie, the lack of intention to defame) could not be invoked by a media defendant. However, held the court, a media defendant would escape liability if it lacked fault in the form of negligence.

Justification

The court also pronounced upon the justification leg of a media defendant's defence. The court held that "the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in a particular way and at the particular time." "In considering the reasonableness of the publication, account must obviously be taken of the nature, extent and tone of the allegations. We know, for instance, that greater latitude is usually allowed in respect of political discussion… What will also figure prominently is the nature of the information on which the allegations were based and the reliability of their source as well as the steps taken to verify the information.

"Ultimately there can be no justification for the publication of untruths and members of the press should not be left with the impression that they have a licence to lower the standards of care which must be observed before a defamatory matter is published in a newspaper." Hefer J.A. continued: "I have mentioned some of the relevant matters; others, such as the opportunity given to the person concerned to respond and the need to publish before establishing the truth in a positive manner, also come to mind. This list is not intended to be exhaustive or definitive."

The onus of proof

The court held that the common law onus rule that a defendant bears the full onus (see Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A)) should not be disturbed, because the facts upon which the defendant relies are peculiarly within his knowledge. "In my judgment it is for the defendant to prove all the facts on which he relies to show that the publication was reasonable and that he was not negligent. Proof of reasonableness will usually (if not inevitably) be proof of lack of negligence."

Impact of the 1993 Constitution on defamation law

The court then considered whether its interpretation of the common law was consonant with the values enshrined in the 1993 Constitution. The court referred to the conflicting judgments in Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) and Buthelezi v South African Broadcasting Corporation [1998] 1 ALL SA 147 (N) and held that the approach of Thirion J in Buthelezi on the question of the onus of proof was the better approach. Hefer J.A. rejected the approach of Cameron J. in Holomisa, who placed the onus of proof on the plaintiff if the nature of the speech was political, because Cameron J's view of the primacy of freedom of expression over personal dignity which he had adopted in that case was not justified by the dictates of the 1993 Constitution and subsequent case law. In the result, the court held that proposed defence was valid in law and could be inserted into the defendants' plea. The common law "as expounded in this judgment" is in conformity with constitutional values."

Effect of the decision

The Bogoshi judgment represents a substantial and long-overdue victory for freedom of expression and the media in South African society. In its unequivocal affirmation of the significance of freedom of the press in and its rejection of the strict liability doctrine, the judgment represents an important move away from the disturbing trend discernible in recent cases which paid scant regard to the right of freedom of expression (see 'Kerzner Unauthorised' (1998) SAMLB, Vol 3, No.1). The immediate effect of the judgment is that both of the traditional legs of defences to a defamation action (i.e.justification and fault) will now be available to a media defendant.

Of necessity, there will be an overlap between the evidence that is led to satisfy the new justification defence and the evidence that is led to justify the lack of negligence defence. As Hefer J.A. states, "the approach [adopted in the Bogoshi case] is intended to cater for ignorance and mistake at the level of lawfulness, and in a given case negligence on the defendant's part may well be determinative of the [lack of] legality of the publication."

The negligence standard now regulates the conduct of broadcasters and owners, publishers, editors, distributors and printers of newspapers, and all other participants involved in aspects of the media. It is submitted that the approach to justification and fault adopted in Bogoshi accords with the salutary imperative that the media have an indispensable role to play in our democracy, but that in fulfilling this role, the media should also act responsibly and with due regard to the importance attached to a person's reputation.

As regards the onus rule, the Bogoshi case has confirmed that the approach adopted in the Neethling case is still good law. The onus of proving the defences of lack of negligence and/or of justification is thus still borne by defendants in defamation actions (including media defendants). The victory that the Bogoshi case represents for freedom of expression is thus not a complete one.

Reputation vs freedom

With respect to what is otherwise a commendable decision, the onus rule is arguably the most glaring instance of the precedence which reputation enjoys over freedom of expression at common law. The effect of the rule is to "chill" free speech, because the prospect of having to discharge the full onus of proving the truth, for example, deters not only false statements but also true ones. It is submitted that a proper approach to the law of defamation leads one to the inevitable conclusion that the precedence of reputation over freedom of expression as manifested in the onus rule can no longer withstand constitutional scrutiny, at least as regards political speech.

In this context, the failure by the court in Bogoshi's case to address this issue adequately is a disappointing blemish on an otherwise most welcome judgment.

Dario Milo Candidate Attorney and Part-time Lecturer Getting the story out: Loosening of strict liability noose welcomed by all the media.