Types of Defamatory Material
Module 5: Defamation
Opinion versus fact
We have dealt with above factual statements that may be defamatory. However, expressions of opinion are differentiated from factual statements. General Comment No. 34 states that defamation laws, particularly penal defamation laws, “should not be applied with regard to those forms of expression that are not, of their nature, subject to verification,”(1) such as opinions and value judgments. It also notes that “[a]ll forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature.”
To determine what counts as opinion, courts tend to look at whether a reasonable reader or listener would understand the statement as asserting a statement of verifiable fact, which is capable of being proven true or false. In the context of social media, a reasonable reader tends to be defined as someone who would ordinarily be following and reading the content of the person who has made the allegedly defamatory statement (per the example of Manuel v Economic Freedom Fighters above). The context in which the statement was made is critical to determine whether a reasonable reader or listener would understand it as opinion or as a statement of fact. There are, for example, ways in which a statement of fact may be made to appear as opinion.(2) In 2020, a US District Court dismissed a slander lawsuit filed against controversial Fox News talk show host Tucker Carlson, citing the fact that the “‘general tenor’ of the show should then inform a viewer that [Carlson] is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.’”(3)
Similarly, content that a reasonable reader or listener would identify as humour or satire, and not reasonably interpret as stating fact, is also not liable for defamation.
A prime example is that of the South African cartoonist Jonathan “Zapiro” Shapiro, who was sued for defamation by former South African President Jacob Zuma for a cartoon in which he depicted the former President, who was previously charged with rape and accused of undermining the justice system to avoid charges of corruption, preparing to sexually assault a symbolic Lady Justice. Right before the case was to be heard, Zuma withdrew his suit, which Shapiro hailed as “an important signal that the president respects the right of the media to criticise his conduct.”(4)
In an amusing recent example, American satirical news publication The Onion submitted an amicus curiae brief to the United States Supreme Court in a case brought by a man who was arrested for mocking local police using satire. The brief blends legal arguments with humour and satire to argue for protecting the publication of parody and satire as an ancient and valuable art form and to prevent the imprisonment of humourists.(5)
Statements of others
A point of consideration, particularly for journalists, is the extent to which they are liable for the potentially defamatory statements of others since a central part of their work is reporting on the words of others. The European Court of Human Rights (ECtHR) has found that a journalist is not automatically liable for the opinions stated by others, and is not required to “systematically and formally” distance themselves from “the content of a statement that might defame or harm a third party,”(6) provided they have not repeated potentially defamatory statements as their own, endorsed, or clearly agreed with them. The ruling of the High Court of South Africa in Manuel v Economic Freedom Fighters and Others(7) raises some questions about the extent to which this principle holds up in African courts, particularly in the online domain.
Privileged statements refer to those made in the public interest. Statements that are reported from the legislature or judicial proceedings are usually considered absolutely privileged, meaning that neither the author of the statement nor the media reporting it are liable for defamation. Some other types of statements reported from public meetings, documents and other material in the public domain may also enjoy qualified privilege.
Whose burden of proof?
A general principle of law is that the burden of proof lies with the claimant — the person who brings the suit or makes the “claim”. However, with defamation, this principle is generally reversed, and the responsibility lies with the defendant — the person who made the allegedly defamatory statement — to prove that the statement did not damage the claimant’s reputation, either because it is true or for one of the other reasons listed above. The United States is a prominent exception to this rule, wherein the burden of proof in cases brought by any public figure falls on the claimant.
Remedies and penalties
As discussed above, criminal penalties have been the focus of much attention by international bodies, to the fear of many journalists. However, it is notable that no international human rights court has ever upheld a custodial sentence on a journalist for a ‘regular’ defamation case. In Konaté v Burkina Faso, the African Court held that:
“Apart from serious and very exceptional circumstances for example, incitement to international crimes, public incitement to hatred, discrimination or violence or threats against a person or a group of people, because of specific criteria such as race, colour, religion or nationality, the Court is of the view that violations of laws on freedom of speech and the press cannot be sanctioned by custodial sentences.”(8)
It is important that civil defamation laws contain sufficient checks and balances to prevent them being used to unduly stifle freedom of expression, such as limits on financial penalties. Even in Ghana, the first African country to decriminalise defamation, “there has been an increase in civil suits for libel brought by powerful individuals, leading, in some cases, to damages payouts of such large proportions to powerful individuals as to threaten the existence of some media outlets.”(9)