Manuel v Malema and the legal consequences of fake news

posted in Defamation, Fake news, Freedom of expression, Media law, Musings on Media on by

The recent judgment of the High Court in Malema v Economic Freedom Fighters – available here is a very significant judgment in our defamation jurisprudence. I wrote an article for Daily Maverick – available here – which is my take on the judgment (and bear in mind that I acted for Trevor Manuel, the applicant, so full disclosure).

Here’s the article again:

“Fake news” – a term ironically made popular by Donald Trump – is a real problem for our democracy. This is not news which the publisher reasonably believes to be true because, for example, steps have been taken to verify the information.

Instead, “fake news” or disinformation, is news which the publisher knows is false, or is reckless as to whether it is true or false. Publishers who know they are publishing false news or are reckless about it, do not enhance any of the rationales for protecting free speech in our democracy. This is because lies do nothing to enhance truth-telling, individual autonomy or participatory democracy.

In the 17th century, the writer John Milton thought that the best way to deal with falsehoods was to leave them be; the truth would always out:

And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.

If such an approach was ever acceptable, it is certainly entirely out of place in our modern digital age. The reach and potency of disinformation means truth is frequently a casualty of our public discourse. One need look no further than the frequent tweets of the president of the United States to prove the point.

Given its findings, the judgment handed down by the Johannesburg High Court on Thursday in the case brought by Trevor Manuel against the Economic Freedom Fighters (EFF) can be viewed as a significant victory against fake news. It shows that there is a place for the law to hold those who publish fake news accountable. And it shows that the law has real bite when it comes to redressing the harm fake news causes to one’s dignity and reputation.

The facts of the case are well-known. They begin with the recommendation of the Nugent Commission that a new commissioner of the South African Revenue Services be appointed by the President to replace Tom Moyane. Judge Nugent recommended that candidates for appointment should be submitted to a private interview by a panel of members selected by the president. The panel would then make a motivated recommendation to the President on the suitability for the appointment of the candidate.

The Minister of Finance announced the appointment of the panel with Manuel as its chair. The panel ultimately unanimously recommended Edward Kieswetter, and President Ramaphosa in due course accepted the recommendation.

The EFF published a statement on its Twitter account, which at the time of the tweet had about 750 000 followers. Julius Malema tweeted the statement to his 2 million followers. The statement understandably was widely covered in the media. The statement stated in relevant part as follows:

The Economic Freedom Fighters objects to the patently nepotistic, and corrupt process of selecting the South African revenue services’ commissioner.

In February 2019, the EFF sent a letter, and Parliamentary questions to the outgoing President Mr Cyril Ramaphosa and Mr Tito Mboweni, to specifically ask why they are conducting the SARS selection process in secret. It is confirmed that a panel chaired by former minister, Trevor Manuel, conducted secret interviews to select the SARS Commissioner, and this goes against the spirit of transparency and openness.

It has now emerged that the reason is that, one of the candidates who was interviewed, and favoured by the panel, is a dodgy character called Edward Kieswetter, who is not just a relative of Trevor Manuel, but a close business associate and companion.

Kieswetter used to be a Deputy SARS Commissioner, unlawfully appointed to that position by Trevor Manuel, when Pravin Gordhan was SARS Commissioner.

Within a week of the statement, Manuel said a letter demanding that the EFF undertake to desist from publishing the statement, remove it from their public platforms, and apologize. The EFF refused, and the stage was set for the legal battle that followed. A semi-urgent motion was issued forthwith.

Manuel contended that the sting of the statement is that he acted correctly and in a nepotistic manner in recommending Kieswetter to the President. The EFF, on the other hand, argued that the essence of the statement is their concern about the lawfulness of the appointment process. The EFF pleaded the defamation defences of truth and public interest, reasonable publication and protected comment.

Judge Elias Matojane in the Johannesburg High Court began by referencing the trite proposition in the law defamation that two conflicting values are at stake – freedom of expression on the one hand, and the right to dignity, on the other.

The judge held that Manuel had satisfied the requirements for an interdict in our law: he had a clear right to protect his dignity; had suffered and continued to suffer harm his reputation through the widespread dissemination of the statement; and had no alternative remedy given the refusal to apologise or take down the statement. There was also ongoing harm to the well-being of the country “as the public labours under the misapprehension that SARS is led by a person who was appointed for nepotistic and corrupt reasons”.

Judge Matojane easily reached the conclusion that the statement was defamatory. The test is that of the “reasonable representative of users of Twitter who follow the EFF and Mr Malema and share his interest in politics and current affairs”. Such a reader would understand the tweet to mean that Manuel is corrupt, nepotistic and conducted the appointment process secretly in a deliberate attempt to disguise his familial relationship with Kieswetter. This understanding would undoubtedly tend to lower Mr Manuel’s reputation in society.

Moreover, said Judge Matojane, none of the EFF’s defences came to the assistance. They had failed to prove that the sting of the statement was true – ie that Manuel was corrupt and nepotistic. Manuel had recused himself from the interview with Kieswetter and had disclosed the fact that there was once an employment association between them. This was not proof that he was biased or acted in a nepotistic manner.

The EFF also failed to show that they had published the tweet reasonably. In this context, in a major development of the law, Judge Matojane held that the reasonable publication defence is not only available to the media: “Because of social media platforms like Twitter, Facebook and others, ordinary members of society now have publishing capacities capable of reaching beyond that which the print and broadcast media can“. But on the facts, this development did not assist the EFF. They relied on an undated SMS from a confidential source about Manuel’s alleged relationship with Kieswetter, and had taken no steps to verify the allegations, nor given Manuel an opportunity to respond before publication.

The final defence relied upon by the EFF was just as unsuccessful – the protected comment defence failed, held Judge Matojane, because the EFF could not show the underlying facts about Manuel were true. In any event, they acted with malice, because they published “with reckless indifference as to whether it was true or false”. They also kept the statement on line despite its falsity. This showed spite and animosity.

It followed that Manuel should be entitled to remedies for his harmed dignity and reputation. The Court awarded a package of vindicatory remedies. It declared the allegations about him to be false, unlawful and defamatory; ordered the EFF to remove the statement and apologise within 24 hours; and interdicted them from publishing a similar statement in the future. The Court also awarded Manuel R500, 000 in damages (which he intends to donate to VBS pensioners who were victims of the collapse of the bank), and punitive costs. The EFF have lodged an application for permission to appeal.

The Manuel case is of great significance in our jurisprudence. First, going by way of application and not trial proceedings afforded Manuel much quicker and meaningful relief.

Secondly, the Court’s application of basic defamation principles to social media should give pause to those knowingly, recklessly or unreasonably publishing false statements to a wide audience: there are serious legal consequences for publishing fake news. You remain accountable for your speech.

Thirdly, there will be no deleterious consequences for free speech as a result of the judgment. It has always been the case that a publisher who publishes the truth (in the public interest) or acts reasonably , or expresses opinions (even robust and extreme opinions), will be protected. We have patriots like Manuel to thank for the fact that we now have a constitutional right to free speech, and it should always be jealously guarded. This judgment does nothing to undermine that protection.

And finally, law can play a role in challenging fake news and reversing at least some of the harms the disinformation has caused. The decalaration of falsity relief, for instance, is a defamation remedy I have always thought to have great potential. It tells the public where the truth lies, and thereby corrects the public record for the good of our democracy. The law is only one tool – and an imperfect one at that – to address fake news, but the principles adopted in the Manuel case take our law in the right direction.

 

Inxeba – Court papers

posted in Classification, Culture, Film and Publications Act, Films, Freedom of expression, Media law, Musings on Media on by

Related image

March 2018 was a big month for the right to freedom of expression, and it was all about the right to screen the film Inxeba: The Wound.

On 28 March 2018, the Pretoria High Court (Raulinga J) reserved judgment in the application by the distributors and producers of the movie Inxeba: The Wound for a judicial review of the decision of the Film and Publication Appeal Tribunal to classify the movie X18.  The effect of the classification was that the movie cannot be screened except in adult premises. One media report of the day’s proceedings can be found here.

As an interim position, however, the parties had agreed earlier in March – reflected in an order of court on Tuesday 6 March by Tuchten J – that the movie could again be screened from Friday 9 March in cinemas on the basis that it is classified 18 – but not X18: see some media publicity here).

More dramatic developments followed in the evening of Thursday 8 March when the House of Traditional Leaders brought an eleventh-hour urgent interdict to stop the movie from being screened the following morning.  Judge Tuchten – still on urgent court duty in Pretoria – dismissed the application in the early hours of Friday 9 March and the movie was screened again from later that morning.   Here’s one article reporting on what happened that evening.

The substantive issues were argued in the full-day hearing  of 28 March (after the judge viewed the movie with the parties in the judge’s tea room on 26 March).  Here are the court records in the case for your viewing pleasure: the pleadings (ie the application, the founding affidavit, supplementary affidavit, answering affidavit and the replying affidavit); and the heads of argument:

Inxeba pleadings 20180319

Inxeba 1st and 2nd respondents’ heads

Inxeba Third respondents’ heads of argument 20180328

Inxeba Fifth and sixth respondents heads of argument 20180323

Inxeba amici heads

Inxeba applicants’ heads

Judge Raulinga said at the end of the proceedings of 28 March that he would deliver judgment as soon as he could.

I will keep you posted.

The Hate Speech Bill and satire

posted in Freedom of expression, Hate speech, Parliament on by

At the end of January 2017, comments on the Prevention and Combating of Hate Crimes and Hate Speech Bill were due.  I acted for some of our  leading stand-up comedians and satirists (including the cartoonist Zapiro) in making submissions on the harm posed by the Bill for legitimate satire.

I penned a piece for the Business Day, which was published on 21 February, and which summarized the issues that we dealt with in our submission (prepared by myself and two junior counsel at Group 621, Advocates Stuart Scott (until he left for the Bar, an associate in my team), and Itumeleng Phalane).   You can find the submission itself here, published on Columbia University’s Global Freedom of Expression and Information website (I am fortunate to be the South African free speech expert in this project).

Here’s my Business Day piece if you missed it:

Continue reading

Signal jamming, parliamentary broadcasts, evicting MPs, and access to share registers – the appeal courts speak

posted in Access to information, Broadcasting, Freedom of expression, Media law, Musings on Media, Open justice, Openness, Parliament, Political speech, Signal Jamming on by

I acted for Primedia Broadcasting and the South African Editors’ Forum in the appeal to the Supreme Court of Appeal (along with Right2Know and Open Democracy Advice Centre) concerning the now infamous signal jamming and broadcast ban that occurred during last year’s State of the Nation (SONA) address in Parliament. The SCA ruled in our clients’ favour last week. I penned a piece for Business Day, which was published yesterday, and which you can read here.

The case is a wonderful continuation of the openness jurisprudence of the SCA (and the Constitutional Court).  It’s a powerful judgment.  We will know in a few weeks whether the speaker of parliament and the minister of state security will seek to appeal to the Constitutional Court.

Of course, this was not the first appeal judgment dealing with free speech and SONA 2015 – the Democratic Alliance succeeded in March this year in a challenge to the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004.  Section 11 of that Act provided as follows: “A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.”  This provision had been used to justify the forcible ejection of Economic Freedom Front MPs who demanded at SONA 2015 that president Zuma tell us when he would be paying back the money spent on his Nkandla residence.

The Constitutional Court ruled that section 11 was unconstitutional because it covered the arrest and removal of MPs.  It would be cured by reading-in the words “other than a member [of parliament]” after the word “person” at the beginning of the provision.

The other interesting development from late September this year was that the Constitutional Court refused Nova Property Group Holdings Ltd and related companies leave to appeal from the SCA’s ruling that it provide access to its shareholder registers in terms of section 26(2) of the Companies Act (I acted for the amicus, amaBhungane, whose managing partners had made submissions on what became section 26(2) of the Companies Act in parliament in 2008: see a contemporaneous article here) .  This means that the SCA’s word on the issue is in fact the last word – so section 26(2) creates an absolute, unqualified right of access for the media and the public to companies’ shareholder registers. I wrote about the SCA decision when it came out in the Financial Mail, read it here.  You can also read some background about the facts of the case here.

All in all, some fantastic media freedom decisions in the recent weeks.  While we contend with such scandals as #NkandlaGate, #GuptaGate #ShaikGate #NeneGate #HlaudiGate #WaterkloofGate #SpyTapesGate #DuduMyeniZumaGate #AlBashirGate #SecrecyBillGate #SABCGate #SOCsGate #SARSGate #PravinGate etc, at least we can look to our courts to affirm our democracy.

Media law and free speech in 2015 and 2016 so far

Welcome to my first blog of 2016.  It has been a very busy start to the year, which is why this blog comes later than I would have liked. The aim, this year, is to blog far more regularly than last year.  That’s my media law new year’s resolution.  Wish me luck.  First, my traditional summary of media law last year, and then I discuss a few developments in the first two months of this year.

I penned a piece for Business Day in mid-January summarizing, in 1,100 words (how different blogging is!), what the key developments in media law were in 2015.

Here it is in case you missed it: SANRAL and SAA cases gave weight to media freedom.

In the Business Day piece, I discuss the most important case of the year for the media (even though it didn’t involve the media directly) – City of Cape Town v Sanral, as a result of which, once court documents are filed in court, we can now generally regard them as public documents.  There was also the futile attempt by South African Airways to silence the media from publishing a legally privileged report into its financial affairs : South African Airways Soc v BDFM Publishers.  I also discussed the disappointing Western Cape Full Bench decision in Primedia v Speaker of Parliament, where a majority of the court held that parliament’s broadcasting policy – which resulted in images of the Economic Freedom Fighters being ejected from parliament, not being shown on TV; and the signal jamming that took place at the State of the Nation address last year, not being declared unlawful (this case is on appeal to the Supreme Court of Appeal).

I mentioned the decision by the African National Congress – yet to be implemented – to abolish criminal defamation law, the Film and Publication’s Board’s disastrous draft online regulation policy,  and the Press Council’s new Code of Conduct which has been updated to take into account digital speech, including members’ liability for user-generated content. Continue reading