The years 2018 and 1998 seem centuries apart sometimes.
In 1998, cell phones were a fairly news phenomenon in South Africa. These instruments were used for mainly two purposes – to make and receive calls and to exchange SMS messages.
Internet access was reserved for the lucky in the year 2000. Only 2.4 million South Africans were connected. This year, we have more than 30 million web users in South Africa.
The arrival of social media has changed how we communicate. Whereas publishing and distributing information to thousands were an act virtually exclusive to the traditional media in the 1990’s, it is now something that any South African with internet access can do.
Two decades ago, the media were the gatekeepers of information. Nowadays any person is able to break, update and share newsworthy content or information in the public interest.
In terms of South Africa’s defamation law, a line is drawn between media defendants and regular defendants in defamation cases. Distinguishing as such has a big impact on whether a defamation defendant will be held liable for defamation or not.
Defamation is defined as the publishing of content that has the tendency to injure the subject’s reputation, which is a sunset of his human dignity.
Defamation is a delict with five elements: the act of publication, the wrongfulness of the publication, fault on the part of he who defames, causality and damage.
South Africa’s courts hold the media and regular persons on different footing. This was based on, among others, the traditional media’s wide publishing abilities, the fact that the media made money out of publishing, printing and distributing and the media’s status as gatekeepers of news.
Nowadays media institutions are no longer the gatekeepers of news. Any person with access to the world wide web may publish and distribute content including breaking news. Members of the public make money from blogging and social media activity. Many social media figures have greater reach than daily or weekly print publications.
The Constitutional Court decided in 2002 that it was justifiable to distinguish between media defendants and non-media defendants. Once a defamation plaintiff has proved that he was defamed, the presumptions of wrongfulness and fault arise on the part of the defendant. This is where the differentiation becomes central to what happens next.
Media defendants may disprove the presumption of wrongfulness by indicating that their publication was reasonable under the circumstances. This is a media-exclusive defence. Various factors are taken into account to determine whether it was reasonable for the defendant to publish the defamatory content. These include the public interest in what was published, the tone, whether those implicated were offered the right to reply, the reliability of sources and nature of information on which the allegations are based.
Regular defendants are limited to other defences such as proving that the publication was true and in the public interest, that is was fair comment on a matter of public interest or that it was accurate and fair reflection of court or council proceedings.
When it comes to the presumption of fault, non-media defendants may evade liability simply by proving that they did not intend for the plaintiff to be defamed. Media defendants must prove that they lacked both intent and negligence in order to evade liability.
The law of defamation has been compared to a scale through which the rights to freedom of expression and human dignity are balanced.
The right to human dignity is entrenched in section 10 of the Constitution.
Section 16 states that:
“16 (1) Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
The law of defamation therefore limits the right to human dignity in that justifiable defamation will not render the defendant liable for the defamation. It also limits the right to freedom of expression – if someone defames another in an unjustifiable way, he will be held liable and may be ordered to pay damages.
When the law limits a Bill of Rights right such as the rights to human dignity and freedom of expression, the limitation must adhere to the requirements of Section 36 of the Constitution.
“36 (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
It has been stated above that the defence of reasonableness in relation to the wrongfulness element is available to media defendants only.
Whereas regular defendants may evade liability for defamation based on lack of intention, media defendants must prove that they lacked both intention and negligence when unlawfully defaming.
The law of defamation – the proverbial scale – limits the non-media defendants right to freedom of expression when it comes to refuting the presumption of wrongfulness. Where it concerns fault, the scale tips and the media defendant’s right to freedom of expression is limited.
These two limitations were justifiable in 2002. At the time, non-media members did not have the publishing abilities they have today.
In 2018 Average Joe’s publications and his distribution thereof has the capacity to reach millions more than, for example, the printed copies of a newspaper. Every day, social media personalities post content to millions worldwide, while the distribution figures of South Africa’s largest newspaper, Daily Sun, totals 141 187.
It made sense to approach media defendants and regular defendants differently in 1998 and 2002. The right to freedom of expression was crucial to the media, who were the gatekeepers of information in the public interest at the time. The media’s ability to publish content on a large scale necessitated that the right to dignity of those they reported on required extra protection.
The limitation affecting non-media defendants regarding the wrongfulness element made sense – at the time, regular citizens were not able to publish and the media’s exclusive ability to inform required leeway in the form of the reasonableness defence under the wrongfulness element.
At the same time, members of the media had to operate the tools available to them responsibly. Their ability to publish on a large scale came with the responsibility to do so carefully. The right to dignity of their reportage subjects deserved extra protection.
Twenty years ago, the common law of defamation justifiably distinguished between media defendants and non-media defendants.
Today, however, the distinctions and its results are no longer justifiable in a transformed digital society. It no longer serves the test set out in section 36 of the Constitution.
Our Constitution is able to remain relevant and accommodate contextual and societal changes. The interpretation of our law through a living Constitution adapts to changing realities. This is one of our law’s greatest attributes.
South Africa’s defamation law was amended in 1998 to protect residents against the mass publication power that was once exclusive to the media. This power has now extended and is held by 30 million residents, the majority of whom are not affiliated with media institutions. The change in context and society has knocked the law of defamation scale out of balance.
Restoring balance will require mirroring the changes that digitisation of society has brought about. Rather than applying only to media members, the defences of reasonableness as it pertains to both wrongfulness and fault should extend to all South Africans.
Our courts have not yet placed regular defendants and media defendants on equal footing. This is bound to happen – hopefully sooner than later.