Defamation vs Freedom of Expression – Where do we draw the line?

With regard to Antony Louis Mostert & three others v Simon John Nash & seven others

Introduction:

In today’s society there is a plethora of ways that people can make their voices heard, be it through media, social media, blogs, articles or the good old grapevine. But have you ever stopped and wondered how free freedom of expression really is? It’s perhaps a thought that should have crossed the mind of the First Respondent in this matter.

Dispute:

The dispute herein relates to very unsavory remarks about the First Applicant which were made by the First Respondent.

An application was brought by the First Applicant, Antony Louis Mostert, in his personal capacity and in his capacity as curator and liquidator of the Third and Fourth Applicants respectfully, both being pension funds. Such application was brought to seek an order to prohibit the Respondents from disseminating, directly or indirectly false and defamatory allegations about the First Applicant and certain other relief. The Application was brought on the basis of urgency, as publication of further defamatory allegations were anticipated.

The First Respondent alleges that the abovementioned order would severely violate his Constitutional right to freedom of expression on two grounds, firstly that it would limit his right to impart information and ideas unjustifiably and, secondly, it unjustifiably limits the public’s right to receive such information.

The defamatory allegations made by the First Respondent were made on more than one occasion and continued on the website www.pensionscam.co.za. Such allegations were made after the First Applicant’s appointment as curator and consisted of accusations of fraud, corruption and further went on to attack the character of the First Applicant. It must be noted that the aforesaid allegations were not supported by any facts.

Right to dignity and freedom of expression:

The court had to take into account the following factors in determining the dispute:

  1. Has the First Respondent undermined the right of the First Applicant to the safeguard of his dignity and reputation or fama which personality right is protected by the law of defamation;
  2. Does freedom of expression exonerate the First Respondent from all liability for his untruthful statements about the First Applicant; and
  3. Is the order sought justified?

Human dignity and freedom of expression are rights afforded to South Africans and are protected by the Constitution. The right to human dignity is protected by Section 10 of the Constitution and includes inherent dignity and the right to have their dignity respected and protected. On the other hand, the right to freedom of expression is protected by Section 16 of the Constitution and any limitations are subject to the requirements of Section 36.

The Court stated that freedom of expression does not trump the right to dignity and further referred to what was stated by the Constitutional Court in S v Mamabolo with regard to the relationship between the rights to dignity and freedom of expression, namely:

“With us, the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression. How these two rights are to be balanced, in principle and in any particular set of circumstances, is not a question that can or should be addressed here. What is clear though and must be stated, is that freedom of expression does not enjoy superior status in our law. ”

Defamation Requirements:

The elements of defamation consist of:

  1. The wrongful; and
  2. Intentional;
  3. Publication of;
  4. A defamatory statement.

The Court stated that “the law of defamation is designed to protect the reputation of people, in doing so, it limits the right to freedom of expression. Such limitation can be consistent with the Constitution only if it can be said that ‘an appropriate balance is struck between the protection of freedom of expression on the one hand, and the value of human dignity on the other‘.”

The court further went on to state:

“It follows in my view, that in defamation cases the truth of what is said and the public interest are relevant factors. Also relevant are the context in which the statements were made, their reasonableness, the tone used, the identity of the person who made the statements and the identity of the victim. These criteria are useful, in my view, when determining whether freedom of expression justifies the violations of a person’s right to dignity.”

Order:

The Court disregarded the First Respondent’s defence that such statements were fair comment and in the public interest and came to the conclusion that the defamatory statements were not supported by any evidence and were “outrageously defamatory”.

The Court made the following order:

  1. The First to Third Respondents are interdicted from disseminating, directly or indirectly, false and defamatory allegations pertaining to the First and Second Applicants as well as their associates;
  2. The Respondents are directed to cause the website http://pensionscam.co.za or any other website established by them which refer to the First Applicant or his associates to be closed down within 24 hours, failing which the Sheriff shall be authorised to do so;
  3. The First and Fourth Respondents are ordered to obtain leave of the Court prior to instituting further proceedings against the Applicants;
  4. The costs of this application shall be borne by the First to Third Respondents jointly and severally.

Conclusion:

Simply put, defamation is not something to be taken lightly. Our Constitution affords South Africans an array of Rights that should not, and will not, be used to defend wrongful behavior.

By
Lauren Padayachee
lauren@dyason.co.za