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    Can a True Statement be Defamatory?

    Module 5: Defamation

    In most jurisdictions, truth is a defence to defamation claims, provided it can be proven.  However, in some jurisdictions, truth alone is not sufficient: it is further required that the public interest in the publication be established as well.

    From a continental perspective, the ACHPR states in the Declaration of Principles on Freedom of Expression and Access to Information in Africa that “[n]o one shall be found liable for true statements, expressions of opinions or statements which are reasonable to make in the circumstances.”(1)

    Courts in some jurisdictions, notably South Africa, have even found that false statements may still not constitute defamation.  In National Media Ltd and Others v Bogoshi, the court developed the defence of reasonable publication, finding that:

    “[T]he 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.”(2)

    The term “reasonable publication” encompasses the idea that the author took reasonable steps to ensure the accuracy of the content of the publication, and also that the publication was on a matter of public interest.(3) InTrustco Group International Ltd and Others v Shikongo, the Namibian Supreme Court found that “[t]he defence of reasonable publication holds those publishing defamatory statements accountable while not preventing them from publishing statements that are in the public interest.”(4)

    Similarly, General Comment No. 34 states that “a public interest in the subject matter of the criticism should be recognised as a defence”(5) against defamation.

    Footnotes

    1. African Commission on Human and Peoples’ Rights, ‘Declaration of Principles on Freedom of Expression in Africa’, (2019) (accessible at: https://www.achpr.org/legalinstruments/detail?id=69). [1] Supreme Court of Appeal of South Africa, Case No. 579/96 (1998) (accessible at: http://www.saflii.org/za/cases/ZASCA/1998/94.pdf). Back
    2. [1] Supreme Court of Appeal of South Africa, Case No. 579/96 (1998) (accessible at: http://www.saflii.org/za/cases/ZASCA/1998/94.pdf). Back
    3. Media Defence on the principles of freedom of expression under international law: Richard Carver, ‘Training manual on international and comparative media and freedom of expression law’, Media Defence at pp 48-64 (2018) (accessible at: https://www.mediadefence.org/sites/default/files/resources/files/MLDI.FoEManual.Version1.1.pdf). Back
    4. Supreme Court of Namibia, Case No. SA 8/2009 (2010) (accessible at: https://namiblii.org/system/files/judgment/supreme-court/2010/6/2010_6.pdf). Back
    5. UNHRC above at p 12. Back