Pierre de Vos, Constitutionally Speaking – 1 June 2019
Anyone who has spent any time on Twitter will be aware that Twitter is awash in false and defamatory statements. The judgment of the High Court, which found that the Economic Freedom Fighters (EFF), Mbuyiseni Ndlozi and Julius Malema made false and defamatory statements about Trevor Manuel and ordered them to pay R500 000 in damages, should make Twitter users think twice before publishing false and defamatory statements on this platform.
On 27 March this year the EFF published a tweet on its official twitter account (retweeted by Mr Malema) linked to a statement in which it claimed that the process to appoint Edward Kieswetter as the new SARS Commissioner was “secret”, that this was because Mr Manuel (who headed the selection panel) was related to Mr Kieswetter and was also his “close business associate”. They also claimed Mr Manuel had unlawfully appointed Mr Kieswetter as Deputy Commissioner of SARS in order “to commit corruption”.
Mr Manuel sued for defamation and also asked the court to order the respondents to remove the defamatory statement from their website, to apologise to Mr Manuel and to refrain from repeating the defamatory statements in future. The judgment (in Manuel v EFF and Others) is not only interesting because it held that the EFF, Mr Ndlozi and Mr Malema acted with malice, but also because it took a novel approach to the problem of how to deal with defamation on Twitter, and extended the defences available to a Twitter user (and other ordinary citizens) who are sued for defamation.
In South African law, defamation is defined as the wrongful and intentional publication of a defamatory statement concerning a person. Once the applicant has proven that a defamatory statement was made about him or her, it is assumed that the statement was unlawful and made with intent. The respondents can then attempt to rebut these presumptions by raising various defences. This judgment extends one of the defences previously only open to journalists, to all citizens, with specific reference to users of Twitter.
Whether a statement is defamatory is established by using an objective test. The court asks how a reasonable person would have viewed the statement. Because the EFF statement was made on Twitter, the court held that the hypothetical reasonable reader “must be taken to be a reasonable representative of users on Twitter who follow the EFF and Mr Malema and share his interest in politics and current affairs”. (The jokes about the absence of reasonable people on Twitter write themselves.)
The court held that such a reasonable Twitter user who follows Mr Malema would understand the tweet to mean Mr Manuel is “corrupt, nepotistic and has conducted an appointment process for SARS Commissioner secretly in a deliberate attempt to disguise his familial relationship with Mr Kieswetter, and that he is connected to a ‘white capitalistic establishment’ that acts contrary to the best interest of SARS”. The statement thus obviously tarnished Mr Manuel’s reputation and was therefore clearly defamatory.
Lawyers for the EFF, Dr Ndlozi and Mr Malema offered several defences to justify their publication of the defamatory statement.
First, they relied on the defence that the statement was true and in the public interest. This was odd, as they had not put up any facts to support the truth of their claims. The court, in fact, found that they knew that at least some of the statements they made were false. The process of appointing the new SARS Commissioner was open and transparent as it was conducted according to the recommendations contained in Nugent report.
The allegation that Mr Manuel unlawfully appointed Mr Kieswetter to the position of deputy commissioner of SARS when he was minister of finance was also clearly false as the president appointed Mr Kieswetter. Similarly the claim that Kieswetter and Manuel were related was also demonstrably false. The defence therefore had to fail.
The most interesting aspect of the judgment relates to the second defence offered by the respondents to justify the defamation. The EFF, Dr Ndlozi and Mr Malema argued that the publication was reasonable because they acted as whistle-blowers, communicating information from a confidential source which they believed to be true because it was in the public interest.
The Supreme Court of Appeal (SCA) developed the defence of reasonable publication shortly after the 1996 Constitution came into effect in order to strike a more appropriate balance between the right to freedom of expression, on the one hand, and the need to protect the dignity of individuals, on the other. It held in National Media Ltd. and Others v Bogoshi 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 the 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 and that the tone in which a newspaper article is written, or the way in which it is presented, sometimes provides additional, and perhaps unnecessary, sting. 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.
Until now, the defence was only available to the press, not to users of Twitter. However, in the present case Motojane J held that the defence should also be open to ordinary people making use of social media “to communicate matters of public interest”.
The defence would not be available to somebody making false and defamatory statements about somebody regarding a matter that was not in the public interest. This would mean that normally it would not be a defence if you tweeted that a celebrity was having an affair or that your neighbour organised orgies at his house. The court explained its reasoning for extending this defence as follows:
Because of social media platforms like Facebook, Twitter and others, ordinary members of society now have publishing capacities capable of reaching beyond that which the print and broadcast media can. Twitter users follow news in general on the service worldwide. When there is breaking news, they become even more participatory, commenting, posting their opinions and retweeting.
The court noted that publication on Twitter – unlike statements published in a newspaper in South Africa – are capable of reaching millions of people instantaneously. For this reason:
There is no justification as to why the press should enjoy the privilege of freedom of expression greater than that enjoyed by any private individual. There is, therefore, no justification for limiting the defence of reasonableness… to the media only.
However, the court held that in this case the defence of reasonableness cannot assist the EFF, Dr Ndlozi and Mr Malema as they have failed to show that that it was reasonable in the circumstances to publish the particular facts, in a particular way and at a particular time. The EFF published allegations contained in a text message that Mr Manuel was related to Mr Kieswetter without taking reasonable steps (in fact, without taking any steps) to verify this defamatory claim before publishing it on Twitter. They also failed to check with Mr Manuel whether this was true.
It remains to be seen whether the SCA and the Constitutional Court will endorse this expansion of the defamation defence of reasonableness.
The court also rejected the defence that their statement was fair comment.This defence states that as long as one’s comment was based on true facts, one can criticise someone even if the criticism is “extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly-held opinion, without malice, on a matter of public interest on facts that are true”.
This defence was not available to the respondents because the underlying facts they relied on were all false. Moreover, their behaviour before and after the statement was published shows that it was made in malice, and was published wit with “reckless indifference as to whether it was true or false”; its aim to injure Mr Manuel because of spite or animosity.
South African courts seldom award large sums of money to an injured party in a defamation suit. However, the court did not take kindly to the malicious behaviour of the responded, noting that:
The conduct of the EFF, Dr Ndlozi and Mr Malema has been egregious and hurtful. In response to a letter to the EFF by Mr Manuel , in which he refuted the claims in resect of Mr Kieswetter and where he requested the EFF to withdraw the allegations or face legal action, Mr Malema replied in a tweet… that Mr Manuel ‘can go to hell, we are not scared of him’.
Their motive of publishing the defamatory statement was actual malice and desire to hurt the applicant. This led to a punitive cost order against the respondents and the granting of an award a larger than usual amount of R500 000 – which Mr Manuel has indicated will be donated to a charity.
The judgment shows that – even on Twitter – facts do matter and that ordinary citizens as well as politicians should think twice before tweeting false and defamatory statements.