What is the Right Way to Deal with Defamation?
Module 5: Defamation
When a person is found to have been defamed, they are entitled to a remedy. However, the remedies imposed are often punitive and disproportionate. We have already seen that sentences of imprisonment for criminal defamation are widely regarded as disproportionate due to their impact on freedom of expression.(1) Likewise, heavy fines, whether in criminal or civil cases, are aimed at punishing the defamer rather than redressing the wrong to the defamed.(2)
Whenever possible, redress in defamation cases should be non-pecuniary (non-financial) and aimed directly at remedying the wrong caused by the defamatory statement, such as through publishing an apology or correction.
Monetary awards — the payment of damages — should only be considered when other less intrusive means are insufficient to redress the harm caused. Compensation for harm caused (pecuniary damages) should be based on evidence quantifying the harm and demonstrating a causal relationship with the alleged defamatory statement.
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. The 2019 judgment of the High Court of South Africa in Manuel v Economic Freedom Fighters and Others(3) provides insight into how courts may use existing defamation laws to deal with cases involving statements in online publications. The Court’s judgment contained a number of novel findings:(4)
- Because it centred on a statement posted on Twitter, the Court explained that “[t]he hypothetical ordinary reader must be taken to be a reasonable representative of Twitter users who follow the EFF and Mr Malema and share his interest in politics and current affairs”. The EFF is a controversial South African far-left political party, of which Mr Malema is the President and “Commander-in-Chief”. Both parties have been repeatedly accused of using language that incites violence, particularly of a racial form, in their efforts to achieve ‘radical transformation’ of society and the economy.
- The Court referred to the ‘repetition rule,’ whereby persons who repeat a defamatory allegation made by another “are treated as if they made the allegation themselves, even if they attempt to distance themselves from the allegation.” This has implications for others who play a role in disseminating defamatory statements further, such as by ‘retweeting.’ The Court did not explicitly address this point further.
- The Court also stated that the reasonable publication defence is applicable beyond just the media to ordinary members of the public too, provided they take all reasonable steps to verify the information as normally required under that defence.
- Although the judgment ordered the defendants to remove the impugned statement from their media platforms within 24 hours, the deletion of a tweet on Twitter does not necessarily remove it from all platforms, as there are other ways in which the content may have been distributed not addressed by the deletion (such as retweets in which persons added a comment of their own). This is a particular challenge that social media platforms pose when seeking to find an effective remedy to a claim of defamation.
On appeal to the Supreme Court of Appeal in November 2020, the Court confirmed that the EFF had unlawfully defamed Manuel and granted Manuel declaratory and interdictory relief. However, it referred the issue of a damages award for oral hearing because the amount was “extraordinarily high.” The damages award was referred back to the High Court for reconsideration, while the Constitutional Court subsequently dismissed Manuel’s appeal to reinstate it, demonstrating the Court’s hesitance to impose high pecuniary damages for defamation cases in order not to stifle freedom of expression.(5)