Media law developments in the third quarter of 2021

I haven’t posted anything for a while and this is an update post to share some of my recent pieces in the media, and other developments

At the beginning of July this year, the Constitutional Court handed down its decision in the CR17 case – where President Ramaphosa successfully challenged the Public Protector’s report where she found he had acted unlawfully in relation to donations made to his CR17 election campaign. We acted for amaBhungane, who was interested in the case not because it thought the Public Protector’s report was correct but because it argued that if the Executive Ethics Code did not require disclosure of donations made to internal political campaigns, it was unconstitutional. In the piece I authored with Lavanya Pillay, we analyse the Con Court’s decision – available here – which held that the Full Bench of the High Court ought to have considered amaBhungane’s constitutional challenge, having found that the Code did not require disclosure by Mr Ramaphosa. You can read our Daily Maverick analysis, ‘To disclose or not to disclose”, here. The Full Bench of the High Court acted swiftly in re-enrolling amaBhungane’s application for hearing: the application was heard on 7 September 2021. Judgement awaited.

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When David met Judge Goliath – SLAPPs in SA law

A partner of mine at Webber Wentzel, Odette Geldenhuys (who works in the pro bono unit) and I recently wrote a piece in the Sunday Times on the unprecedented introduction of a SLAPP defence in a case decided by the Western Cape High Court on 9 February 2021. We act for the six defendants in the case, who are alleging that the case is a classical SLAPP lawsuit. You can read the case here. It has made waves around the country.

Here’s our original piece:

In a groundbreaking judgment, Deputy Judge President Patricia Goliath of the Western Cape High Court recognised that defendants may in principle raise a SLAPP defence in defamation cases. SLAPP stands for Strategic Litigation Against Public Participation; and it refers to meritless or exaggerated lawsuits intended to intimidate civil society advocates, human rights defenders, journalists, academics, individuals and organisations acting in the public interest.

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Manuel v Malema in the Supreme Court of Appeal

The Supreme Court of Appeal handed down a significant (and lengthy) judgment on defamation law on 17 December 2020, in the defamation case brought by Trevor Manuel against the Economic Freedom Fighters. You can read the judgment here

In short, the SCA held that the EFF had unlawfully defamed Manuel (ie they published a defamatory media statement alleging he as corrupt and nepotistic without any legal basis at all), and granted Manuel declaratory and interdictory relief. The SCA referred the issue of whether the EFF should apologise to Manuel, and the quantum of damages, for oral hearing.

I wrote a piece in Daily Maverick a few days after the judgment: read it here . I also reproduce it below – as my students know, it’s always nice to be able to quote Shakespeare.

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Season 1 of media law podcasts now complete: Publish responsibly

All five of our media law podcasts have now been uploaded. You will find episode 5 here.

It is one of my favourites. To properly understand the case we discuss – where two veteran journalists sued the Economic Freedom Fighters (EFF), and won – you need to go back over 30 years. My guests are the journalists who brought the case – Thandeka Gqubule-Mbeki and Prof Anton Harber, accused by the EFF of being Stratcom agents. Read the case before you listen to the podcast here.

For the full season 1 podcasts, you can find links in my blogs below. Or if you prefer, search for “Webber Wentzel Legal Insights” wherever you get your podcasts (Apple, Google, Spotify). You will find them easily (and other interesting podcasts from Webber Wentzel, eg the impact of COVID19 on the tech sector). You can access the Spotify podcasts here.

More media law podcasts – disinformation and surveillance

Following the release of the very popular open justice podcast (episode 1), you can now listen to episodes 2 and 3. Listen to all the episodes here or on Spotify or Apple.

In episode 2, I discuss disinformation and whether legal regulation is required, with William Bird of Media Monitoring Africa. This was recorded before the COVID-19 disaster declaration – we now have, of course, a crime of publishing fake news about COVID-19. See my previous blog on that crime here.

Then, in episode 3, I discuss unlawful surveillance – especially of journalists – with Sam Sole of amaBhungane, and Prof Jane Duncan, an expert in the field. You can read Sutherland J’s famous judgment in favour of amaBhungane and Sam in their challenge to RICA here and my blog on his judgment here. We eagerly await the Constitutional Court’s ruling in the confirmation application, heard on 25 February 2020. Incidentally, COVID-19 brought its own surveillance legislation – in the form of the track and trace regulations; read about them in my blog here.

Episode 4 – to be released next Wednesday – is on media ethics, with the Press Ombudsman Pippa Green, and Prof Glenda Daniels. And we end the series the following Wednesday with the final episode where my guests are Thandeka Gqubule-Mbeki and Prof Anton Harber. We take a deep dive into their defamation case against the Economic Freedom Fighters.

Hope you enjoy – and stay safe!