Can a True Statement be Defamatory?

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 a particular way and at the particular time.”(2)

In 2022 the High Court of Namibia ruled that a member of an opposition political party had defamed the wife of the President, Hage Geingob, and was ordered to pay damages to First Lady, Monica Geingos.(3)

The Court determined that Hishoono had actually intended to target Geingob with defamatory claims on social media. Hishoono’s argument that he was merely repeating existing rumours already circulating about Geingos was not considered a valid defence. The Court emphasised that there is no moral distinction between the originator and the conveyer of a rumour. Both actions are discouraged, emphasising that spreading rumours or making damaging statements to one’s reputation without a valid legal defence carries the same level of responsibility.

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.(4) In Trustco 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.”(5)

Similarly, General Comment No. 34 states that “a public interest in the subject matter of the criticism should be recognised as a defence”(6) against defamation.