Recent publicity about the establishment of a Media Appeals Tribunal has put South Africa in the global spotlight over fears that such tribunal will impair freedom of speech. This article does not concern nor does it analyse the merits of the Media Appeals Tribunal. It rather looks at the remedy provided by law for persons that have been defamed by the media. It analyzes the defences available to the media, including the so called "media defence".
Whilst it is true that press freedom is one of the cornerstones of democracy, press freedom is not allowed to go unchecked. The law of defamation acts as a counter balance to press freedom. How does our law do this?
The law of defamation makes provision for a person to bring a claim in circumstances where his right to a good name has been intentionally and wrongfully infringed by another person. Any action which has the effect of reducing a person’s status in the community will infringe on that person’s right to a good name. A plaintiff who alleges that he has been defamed must prove that the statement in question was published and was defamatory.
Once these elements are established, the onus shifts to the defendant to justify the publication of the statement. The most common justifications are that the statement is true and in the public interest, that the statement constitutes fair comment or, in the case of the media, that the journalist was reasonable in publishing the defamatory statement (the so called "media defence").
Whether a publication is defamatory or not will depend upon the meaning of the published statement. Words are to be attributed their natural meaning, and no evidence, apart from the words themselves and their context are admissible as evidence of what they mean. The meaning is established by determining what the first impression of a reasonable person with normal intelligence and development would have been upon reading or hearing the statements. Such reasonable person is not hyper-critical or over sensitive, subscribes to the values of the Constitution and is a member of society in general and not of a specific group. The media defence was first introduced by a decision of the Supreme Court of Appeal in 1998 (the case of National Media Ltd v. Bogoshi). This defence was subsequently upheld by a Constitutional Court decision in 2002 (the case of Khumalo and Others v. Holomisa). The defence applies specifically in cases where the media is unable to prove the truth of a defamatory publication and in essence provides that the media will not be liable for the defamation, provided that the publication was reasonable in the circumstances. The Supreme Court of Appeal in the Bogoshi decision held that:
"... the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time."
There are currently no hard and fast rules about what constitutes reasonable publication, although the factors which may be considered by a Court (as considered and recognised in the Bogoshi decision) include the extent and tone of the allegations, the nature of the information upon which the allegations were based, the nature of the medium used (television has more far-reaching effects than written publications), the reliability of the information, the steps taken to verify the information, the opportunity given to the affected person to react to the allegations, the necessity or urgency to publish before the truth can be positively verified, the possible presence of a malicious motive and the possibility that the same objective could be reached in a less harmful manner.
Fundamental to the media defence is the importance of press freedom in a democratic society. As the Supreme Court of Appeal held in the Bogoshi decision:
"... we must not forget that it is the right, and indeed a vital function, of the press to make available to the community information and criticism about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion. The press and the rest of the media provide the means by which useful, and sometimes vital, information about the daily affairs of the nation is covered to its citizens ... conversely, the press often becomes the voice of the people – their means to convey their concerns to their fellow citizens, to officialdom and to Government".
This does not, however, mean that the media can escape liability for defamation simply because it had no intention to cause injury. If the media acts unreasonably in publishing defamatory statements, it will be held liable, even if it did not intend to defame a person. The onus rests on a media defendant to prove that it acted reasonably. Proving reasonableness will necessarily involve proving an absence of negligence.
The media defence thus accepts that the media does sometimes get its facts wrong, but provided that the media acts reasonably, the law will not hold the media liable. However, where the media acts unreasonably, it will be accountable.
The development of our common law through the introduction of the media defence has brought South African law on defamation in line with standards applied in countries such as the United Kingdom, Australia and Canada.
While the debate about the necessity or not of a media appeals tribunal will undoubtedly continue, our law continues to provide a remedy to persons defamed by statements published in the media. The media is not unchecked, and provided that it acts reasonably, may avail itself of the "media defence".