In January this year, Nick Clegg, the deputy prime minister, committed the coalition government to the legislation, saying: ‘It is simply not right when academics and journalists are effectively bullied into silence by the prospect of costly legal battles with wealthy individuals and big businesses’.
Although the Bill is more like a codification than a radical reform, it contains a number of provisions which are of importance. This article looks at how some of its provisions would affect South African law.
Its first clause may yet prove to be its most important: a statement is only regarded as defamatory if ‘its publication has caused or is likely to cause substantial harm to the reputation of the claimant’.
While this stops short of requiring a claimant to prove harm, it will require a court to interrogate at least two issues: how serious the allegation is, and the existing reputation of the claimant in that area of his or her life implicated by the allegation. By way of illustration, how might this requirement have impacted upon the South African Constitutional Court’s schoolboy defamation case handed down last week? (discussed here on Inforrm). In that case, three schoolboys had created an obviously fictitious digital image by pasting the faces of their principal and vice-principal onto the bodies of two naked men who appeared to be engaged in some form of sexual activity. The majority of the court held that the image was defamatory, saying it exposed the vice-principal to ridicule. The minority found that the image in context would not likely lower the estimation of the vice-principal in the minds of reasonable viewers. A requirement of substantial harm to reputation would fortify the minority’s cogent reasoning: only in a warped reality could such an image be regarded as being likely to cause substantial harm to the reputation of the vice-principal.
Another example is where a claimant already has a bad reputation in an area of his life which the statement that he wishes to sue upon relates to. If, for example, a convicted mass murderer sues over an allegation that he is a disgraceful human being, such an allegation is not likely to cause substantial harm to the reputation of the claimant given his existing bad reputation. A substantial harm test would ensure that such a claimant would not even get out of the starting blocks in a defamation case.
The Defamation Bill seeks to codify the defence of responsible publication, a defence which also applies in South African law. The Bill clarifies that the defence is available where a defendant acts responsibly in publishing a statement of public interest, and it then articulates a number of factors which courts must have regard to. These include the nature of the publication; the seriousness of the imputation; the reliability of the information on which the statement is based; whether the views of the claimant were sought and incorporated; whether the defendant took other steps to verify the accuracy of the statement; and the tone of the statement.
One difference between the English defence and South African law is that the Bill makes it clear that the responsible publication defence applies to media and non-media publications. In South African law, indefensibly, the defence is restricted to media defendants. This means that an NGO which criticises a multinational corporation for harming the environment, for example, must prove the truth of what is published; it cannot invoke the responsible publication defence. Neither, anomalously, can the whistleblower who passes information on to the media.
Another difference between English law and the South African defence is that the common law in England (and now the Defamation Bill) also explicitly protects neutral reportage: where a statement is published as part of ‘an accurate and impartial account of a dispute between the claimant and another person’. Take the case of a newspaper which reported on the now infamous allegations by the South African Constitutional Court judges that the Cape Judge President John Hlophe had sought to improperly interfere with its judgment in a 2008 case involving President Jacob Zuma, and Judge Hlophe’s counter-allegations that the Constitutional Court judges had harmed his reputation and dignity by publicising these allegations.
Strictly, South African defamation law compels a newspaper publishing this spat to show the truth of the substance of the allegations and counter-allegations, a clearly untenable position. The UK Defamation Bill would make it clear that a responsible publication defence extends to such neutral reportage and in a manner that goes beyond the existing common law, which restricts itself largely to reportage of political disputes.
The Defamation Bill also liberalises the defence of fair comment (now called ‘honest comment’). It says that statements of opinion on matters of public interest are protected if an honest person could have held the opinion on the basis of ‘a fact which existed at the time the statement complained of was published’, or a privileged statement. This gives the defence some flexibility: it appears not to require explicit or implicit reference to the facts underpinning the opinion, and also does not require that each fact upon which the opinion is based should be proved to be true. These measures of flexibility are not inherent in the South African common law defence of fair comment.
A significant advance that the Bill makes is the adoption of a ‘single publication’ rule. It provides that the prescription period to sue for defamation is triggered on the first publication of a statement to the public. This will be especially important for the maintenance of internet archives. In South African law, a claimant is entitled to sue every time a defamatory article is accessed, and the prescription period also begins afresh. So if an article is posted onto a newspaper’s website today, the claimant has three years to sue, but every time that article is accessed – even five years later – the prescription period starts again. This position is absurd and South Africa would do well to follow the lead of the UK Bill in this regard.
The time may have come for the South African legislature to consider overhauling our law of defamation, based as it is on centuries of common law. If such a course of action is adopted, the UK’s Defamation Bill will provide a good starting point.