What is the Right Way to Deal with Defamation?

Defamation on new media platforms

The growth of new media, including social media, in recent years has raised questions about whether existing civil defamation laws are adequate for the times and these new technologies, as seen in various cases in South Africa:

• The 2019 High Court judgment in Manuel v Economic Freedom Fighterssheds light on applying defamation laws to online statements.(3) Key points include the court considering Twitter users as the hypothetical audience, the ‘repetition rule’ holding those who share defamatory statements accountable, and the extension of the reasonable publication defence to the public. The court ordered the removal of the statement within 24 hours, but challenges arose in fully erasing content from social media. The Supreme Court of Appeal upheld the defamation ruling but referred damages for reconsideration due to their high amount, emphasizing the need to balance defamation claims with freedom of expression.

• In Daily Maverick (Pty) Ltd and Another v Modiba, the High Court dealt with a defamation case arising from a series of defamatory tweets.(4) The Daily Maverick, an online news service, along with others, filed a case against Modibe Modadiba. Starting from January 17, 2019, and spanning ten months, Modadiba submitted unsolicited columns to the Daily Maverick, four of which were published. No compensation, whether in cash or kind, was offered to Modadiba, which was the usual practice for guest columnists. In June 2019, an article by Modadiba titled “Why Zindzi Mandela should be protected” was deemed unfit for publication due to poor writing and incoherence. Subsequent columns submitted by Modadiba were also rejected. One, discussing the establishment of a national women’s football league, lacked depth, and another on Pan-Africanism was too short, incoherent, and lacked a proper conclusion. Modadiba eventually stopped submitting articles to the Daily Maverick. On January 3, 2020, Modadiba took to Twitter, claiming that he decided to stop writing for the Daily Maverick because they only published articles critical of black leaders, ANC, or EFF. He alleged that when writing anything deemed “anti-white,” the Daily Maverick had an issue. Modadiba continued to post a series of similar tweets, asserting that the applicants were involved in a coordinated effort to mobilize students and social media influencers to spread fake news about certain individuals and organizations for payment. The court additionally explained that the Economic Freedom Fighters, IOL, and the Information Communication & Technology Union regarded the allegations in the tweets as credible and significant. Since the applicants successfully demonstrated the aspects of defamation, the statements made by the respondent were considered false. Consequently, the court instructed the respondent to issue an unqualified retraction and pay damages amounting to R100,000.

• Once again, in a 2020 case the High Court in Johannesburg, South Africa, ruled that a political party’s statements accusing specific journalists of being apartheid agents were defamatory.(5) In Gqubule-Mbeki and Another v Economic Freedom Fighters, two journalists filed the application after the party shared a statement on Twitter, repeating allegations from Winnie Madikizela-Mandela that the journalists were involved in an apartheid government-backed disinformation and propaganda campaign. The court emphasized the lack of evidence supporting the truth of these allegations and stated that the political party couldn’t use the defences of reasonable publication and fair comment.(6)