In a victory for press freedom in South Africa, the Supreme Court of Appeal ruled in September that journalists will no longer be forced to prove the truth of allegedly libelous information to escape liability in defamation actions. The September 29 decision in National Media v. Bogoshi means South African journalists can now defend themselves against a defamation claim by showing that they were reasonable or careful in their work.
“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 at the particular time,” said Judge Joos Hefer. In addition to this new defense, journalists can escape liability by showing that they were not negligent in publishing information, even if it turned out to be wrong. In essence, this decision rejects the standard of strict liability, under which a journalist was liable if anything written turned out to be incorrect, and replaced it with a standard of reasonable and responsible reporting. A story is not libelous if the author acts in good faith and believes the information to be accurate.
In so ruling, the court reversed a lower court judgment against National Media, owner of the weekly newspaper City Press, for articles published in 1996 about the conduct of Pretoria attorney Nthedi Bogoshi. The paper had reported alleged improprieties in Bogoshi’s handling of an insurance case.
The September 29 decision represents an unprecedented acknowledgment by South Africa’s highest common law court of the importance of freedom of expression. And this comes at a critical time: Relations among the Mandela government, the new ruling elite of upper-middle-class blacks, and the media have deteriorated since the heady days of the first democratic election in 1994. Newspapers which campaigned vigorously for the abolition of apartheid now find themselves accused of racist policies when they, for example, expose corruption.
Although South Africa’s 1994 constitution upholds the right to freedom of expression, the common law has continued to be dominated by appellate court decisions requiring journalists to prove the truth of their material. These rulings complemented the apartheid government’s censorship laws by restricting reporting on emergency legislation, police actions, government security actions, and banned organizations like the ANC.
It is all the more striking, therefore, that the landmark judgment in National Media v. Bogoshi rests on the judges’ interpretation of common law in South African and case law in other countries, especially England and Holland, rather than relying on constitutional guarantees. Indeed, the generally conservative appeals court went out of its way to rebut earlier contradictory decisions in order to reconcile common law with the more liberal constitution. Although the court stressed that the private citizen’s rights to privacy and dignity took precedence over the right of freedom of expression, journalists will now face libel actions armed with the Bogoshi judgment and the constitution.
The ruling also marked the first time that the Supreme Court of Appeal acknowledged that the media have a duty to provide information that is in the public interest. Judge Hefer’s opinion stated, “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.”
Since National Media v. Bogoshi involved the alleged misconduct of an attorney, it provides no guidance on the elements of a libel suit by a public figure. The court thus gave no hint of whether it would choose to follow the approach adopted by the U. S. Supreme Court in the landmark 1964 case New York Times Co. v. Sullivan, which held that if the plaintiff is a public figure, he or she must establish malice on the journalist’s part in order to prove a libel accusation.
Thus, the onus remains on a South African journalist — not the plaintiff — to prove that he or she was not negligent. “In my judgment it is for the defendant to prove all the facts on which he relies to show that the publication was reasonable and that he was not negligent,” said Judge Hefer.
It has often been said that South Africa’s constitution is markedly in advance of its largely conservative population. It is therefore not surprising that while the courts appear to be warming to the concept of freedom of expression, many elements of civil society and government have grown increasingly hostile to the press. This can be explained in part by the fact that while under apartheid, the elite could hide their nefarious activities behind restrictive censorship laws, the new elite is more exposed to scrutiny by investigative journalists.
The most common weapon used against the press in South Africa is the accusation of racism. Indeed, the strategy of crying racism to deflect scrutiny reached something of a climax recently when two professional bodies representing black lawyers and accountants reported the country’s two largest-circulation newspapers, Mail & Guardian and the Sunday Times, to the Human Rights Commission for “subliminal racism.”
Ironically, the company which owns the Sunday Times is headed by South Africa’s most famous black businessman, Cyril Ramaphosa, who quit politics after losing to Thabo Mbeki in a contest to become Nelson Mandela’s successor. The complaint drawn up against the Mail & Guardian was based on 14 articles published in 1996, some of which attacked whites and others of which attacked blacks. The plaintiff’s action asserted that there were more cases attacking blacks than whites, indicating a racial bias. When the Mail & Guardian used its gossip column to lampoon the complaint under the headline “subliminal idiocy,” the Human Rights Commission warned the paper that it could be held in contempt of the commission.
Media lawyers say the complaint constitutes one of the most aggressive attempts at censorship since the inception of the ANC government. This impulse from the private sector to silence an already timid press, coupled with an adversarial attitude toward journalists from a government which is extraordinarily sensitive to criticism, lead many South African media observers to temper their assessment of the advances in the cause of press freedom signaled by the Bogoshi decision.
Mungo Soggot is a senior reporter at the Mail & Guardian.