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      Alternative Claims

      Module 5: Defamation

      SLAPP Suits

      Alternative methods are also used to silence critics and journalists. One such example is strategic lawsuits against public participation (SLAPP), which aim to intentionally bury critics under expensive and often baseless legal claims in order to intimidate and silence them. Usually, the objective in these cases is not a positive judgment, but rather to leverage the threat of financial damage. Libel and slander are often used as the underlying complaints in SLAPP suits.

      Following this landmark Constitutional Court ruling on SLAPP suits, South Africa’s courts have been seeing an increase in cases raising SLAPP as a defence. One such case is Maughan v Zuma, where the South African High Court rejected a legal action initiated by the former president, Jacob Zuma, against a journalist, deeming it an abuse of the legal process. The journalist had written an article containing information about the president’s medical condition, gathered from publicly available court documents. When Zuma filed a lawsuit against the journalist, claiming the unauthorized disclosure of confidential information, the journalist sought to dismiss the summons. The Court determined that the notion of abuse of process, akin to a SLAPP suit, could be applicable in criminal proceedings. It concluded that the private prosecution lacked substance and was filed with the sole intent of intimidating and harassing the journalist.(1)

      Most recently, in the case of Mazetti Management Services v AmaBhungane Centre for Investigative Journalism, the South African High Court revoked a temporary injunction that had instructed a media organization to return documents it possessed and prevented further publication.(2)

      A group of companies, displeased with critical articles, secured an ex parte order from the High Court, demanding the return of documents they thought were stolen and prohibiting additional articles based on those documents. Upon review, the Court determined that the initial order was an abuse of the legal process and amounted to a SLAPP suit. The Court affirmed that South African law safeguards source confidentiality and permits pre-publication restrictions only in exceptional cases.

      A growing number of states, such as Canada,(3) have adopted anti-SLAPP legislation to ensure the protection of freedom of expression, which enables cases to be heard quickly and may allow defendants to reclaim costs from the claimant. However, such laws must also be carefully constructed so as not to impede the right of access to justice. Towards the end of 2023, South African civil society organisations collaborated to create an anti-SLAPP model law for South Africa.(4) The model law aims to discourage legal proceedings that hinder public participation and those that repress activists and journalists who act in the public interest. The model law sets out the test for SLAPP suits and outlines the remedies.

      Online harassment as an alternative method of suppressing dissent

      Online harassment of journalists using non-legal means is another too-often-used method of stifling freedom of expression and dissent in Africa and one that has a particularly gendered nature. In the 2023 Maughan v Zuma judgment outlined above, Maughan argued that the private prosecution was a severe misuse of legal proceedings, contending that the summons in the private prosecution was obtained with the ulterior motive of intimidating, harassing, and impeding her ability to carry out her journalistic duties freely, especially reporting on Zuma’s criminal trial. The Court acknowledged Maughan as one of the few remaining journalists consistently covering all of Zuma’s legal matters despite facing media comments and harassment. The Court recognized that she had been subjected to harassment and restrictions, hindering her ability to report accurately and that she operated under the constant threat of potential private prosecution in criminal court or civil litigation.

      The case of Karima Brown in South Africa is instructive in this regard. Brown, a journalist and talk-show host, received countless death and rape threats on social media after Economic Freedom Fighters (EFF) leader Julius Malema posted her phone number online (known as doxing) in retaliation for what he believed was an attempt by Brown to surveil the EFF.(5) In its ruling, the High Court of South Africa ruled that Malema had breached the Electoral Commission Act that protects journalists from facing any harassment, intimidation, or threats by political parties. In particular, the judge ruled that the EFF had failed to “instruct and take reasonable steps to ensure that their supporters do not harass, intimidate, threaten or abuse journalists and especially women”.(6)

      Insult Laws

      A number of other insult laws are still at play across the continent and continue to pose risks for journalists and others critical of the government. For example, under the Lesotho Penal Code, the crime of scandalum magnatum (offences against the royal family) is created as a separate crime from defamation and thus remains on the statute books despite criminal defamation recently being declared unconstitutional. Scandalum magnatum has still been used in recent years by the government of Lesotho against its detractors.(7)

      Likewise, the crime of sedition remains on the statute books in many countries and continues to be used to stifle freedom of expression. Sedition is commonly defined as the crime of “incitement of resistance to or insurrection against lawful authority.”(8) The Nigerian Federal Court of Appeal has distinguished between an outmoded notion of the “sovereign,” who is protected by sedition laws, and the contemporary politician who is regularly subjected to a process of democratic accountability.(9)

      A more recent development has been the passing of ‘fake news’ laws in various countries. These laws are justified by states as being necessary to protect national security or public order and to deal with the misinformation pandemic that has been unleashed by the growth of the internet and social media but are frequently in tension with the right to freedom of expression.

      Regional courts, including the African Court on Human and People’s Rights, have increasingly argued that public officials should enjoy less protection from criticism than others.(10) Because of their status, access to the media, and power, public officials can often use their office to try to curtail freedom of expression and prosecute critics. Additional protections for those who criticise them may therefore be warranted, to counter this imbalance of power. In addition, there is a real need for those serving in public office to be open to criticism and public input. As the European Court of found:

      “The [politician] inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism.”(11)

      The 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa also states, in Principle 21, that public figures should be required to tolerate a greater degree of criticism. The Office of the High Commissioner for Human Rights (OHCHR) has called for the abolition of the offence of ‘defamation of the State,’(12) and some jurisdictions have refused to allow elected and other public authorities to sue for defamation.(13) The ECtHR has limited such suits to situations which threaten public order, implying that governments cannot sue in defamation simply to protect their honour.

      Abuse of Process

      Lastly, those seeking to silence critics and journalists may abuse court processes to meet their objectives.  Recently in South Africa, a mining company, Tharisa Minerals (Pty) Ltd, filed for a protection order against two community activists. The mine ultimately withdrew the application which is largely reserved for victims and survivors of domestic abuse.(14) which may enable you to have the comments taken down. However, they are unlikely to provide further recourse beyond removing the offending content.

      • If you have been targeted by a SLAPP suit that uses defamation charges to silence or intimidate you:
        • Approach a reputable public interest law firm or human rights lawyers for assistance.  Sometimes, lawyers may be able to act pro bono (free of charge) or rely on legal defence funds for their fees.
      • If you live in a country that has defamation laws that infringe regional and international human rights, you may be able to do something about it:
        • Consider whether you have access to other regional or international human rights courts, such as the African Court of Human Rights, or regional courts such as the ECOWAS Community Court of Justice.
        • There may be jurisprudence in your country opposing the use of disproportionate penalties for defamation, but which have not yet been implemented by the judiciary or criminal justice system.
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      Footnotes

      1. Maughan v Zuma and Others [2023] ZAKZPHC 59 (accessible at https://www.saflii.org/za/cases/ZAKZPHC/2023/59.html). Back
      2. Mazetti Management Services (Pty) Ltd and Another v Amabhungane Centre for Investigative Journalism NPC and Others (Accessible at https://www.saflii.org/za/cases/ZAGPJHC/2023/771.html). Back
      3. Osler, O’Brien and Tsilivis, ‘Ontario Court of Appeal clarifies test under “anti-SLAPP” legislation’ (2018) (accessible at https://www.osler.com/en/resources/regulations/2018/ontario-court-of-appeal-clarifies-test-under-anti-slapp-legislation). Back
      4. CALS “The case for anti-SLAPP legislation in South Africa” 2023 (accessible at https:/www.wits.ac.za/media/wits-university/faculties-and-schools/commerce-law-and-management/research-entities/cals/documents/programmes/rule-of-law/resources/Draft for public comment- 13Dec2023- Anti-SLAPP model law- Draft 2023.pdf). Back
      5. Daily Maverick, Rebecca Davis. ‘EFF court losses mount as Karima Brown wins battle, but faces criticism of her own’ (2019) (accessible at https://www.dailymaverick.co.za/article/2019-06-06-eff-court-losses-mount-as-karima-brown-wins-battle-but-faces-criticism-of-her-own/). Back
      6. Brown v Economic Freedom Fighters and Others [2019] ZAGPJHC 166 (accessible at http://www.saflii.org/za/cases/ZAGPJHC/2019/166.html). Back
      7. Hoolo ‘Nyane, ‘Abolition of criminal defamation and retention of scandalum magnatum in Lesotho’, African Human Rights Law Journal (2019) (accessible at http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000200010). Back
      8. Merriam Webster Dictionary, ‘Sedition’, (accessible at https://www.merriam-webster.com/dictionary/sedition). Back
      9. Federal Court of Appeal of Nigeria, Chief Arthur Nwankwo v. The State, 6 NCLR 228 (1983), par. 237. Back
      10. African Court on Human and Peoples’ Rights, Application No. 004/2013, at par. 155 (2014) (accessible at https://en.african-court.org/index.php/55-finalised-cases-details/857-app-no-004-2013-lohe-issa-konate-v-burkina-faso-details). Back
      11. European Court of Human Rights, Application No. 11662/85 (1991), par. 59 (accessible at https://hudoc.echr.coe.int/eng?i=001-58044).For more on this topic, see the seminal case establishing the need for public officials to face a higher threshold of criticism, New York Times v Sullivan in the United States Supreme Court, 376 US 254 (1964) at paras 279-80 (accessible at https://supreme.justia.com/cases/federal/us/376/254/). Back
      12. OHCHR, Concluding Observations of the Human Rights Committee: Serbia and Montenegro, (12/08/2004), par. 22 (accessible at https://www.refworld.org/docid/42ce6cfe4.html). Back
      13. OHCHR, ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,’ (2000) (accessible at https://www.ohchr.org/en/issues/freedomopinion/pages/annual.aspx). Back
      14. See Power Singh Inc, ‘Protecting and promoting freedom of expression in Marikana,’ (accessible at: https://powerlaw.africa/2020/09/22/protecting-and-promoting-freedom-of-expression-in-marikana).

        Practical steps on defamation

        • If you have been a victim or survivor of the non-consensual distribution of intimate images, you may be able to use defamation as a remedy.
          • If you are able to show that the distribution of the images harmed your reputation, you may have success in a defamation case.
          • The challenge with using civil defamation as a remedy is that the images may technically be ‘true’, or even taken with the victim’s consent.  However, if it can be shown that there existed an associated implication about the subject of the images (e.g. that reflect on their character) which can be proven false, a defamation claim is more likely to have success.