- On 30 May 2019, the High Court of South Africa (Gauteng Local Division, Johannesburg) handed down judgment in the matter of Manuel v Economic Freedom Fighters and Others  ZAGPJHC 157, in which the former Minister of Finance sought an interdict against the Economic Freedom Fighters (EFF) over a tweet that he argued was defamatory.
- The judgment provides useful insight into the ways in which courts may apply traditional principles of the law of defamation under the common law to new media platforms, in particular social media.
- This Insight discusses some of the key lessons from the judgment relating to defamatory statements on social media, including: (i) a consideration of the ordinary social media user; (ii) the extended application of the reasonableness defence; (iii) the application of the so-called ‘repetition rule’ in respect of online publications; (iv) the implication of ongoing publication and the extent of publication of defamatory content; and (v) the efficacy of an order to remove defamatory content on social media.
- While the EFF has already issued a press statement indicating that it will be appealing the judgment, the High Court ruling nevertheless provides important guidance for the time being on the application of the law to defamation online.
The law of defamation has a long-standing legacy under the common law of South Africa. This limitation on the right to freedom of expression is aimed, at its core, at restoring the good name and reputation of a person who has been defamed through the publication of a false or unjust statement.
However, with the constant evolution of new forms of media – and particularly the ever-growing popularity of social media – it has become necessary to revisit the old principles of the law of defamation in the light of these new media platforms. The ease and rapidity with which information can be shared, across borders and to vast audiences, is relatively unprecedented, and has undoubtedly caused sleepless nights for lawyers, policy-makers and judges grappling with how best to address these issues.
The key question that arises is this: Do we need new laws to regulate new media platforms, or is it sufficient to apply the existing laws in a manner that is cognisant of the exigencies of these new platforms?
In the May 2019 judgment of Manuel v Economic Freedom Fighters and Others  ZAGPJHC 157, the High Court of South Africa (Gauteng Local Division, Johannesburg) appears to have adopted the latter approach. In doing so, the judgment provides useful guidance on the ways in which the principles of the law of defamation find application in respect of online publications, and the implications that this has on the outcome of the case. Furthermore, the judgment also evinces the particular challenges that arise in finding an effective remedy for defamatory statements published online.
Some of the key lessons proffered by the judgment include the following: (i) a consideration of the ordinary social media user; (ii) the extended application of the reasonableness defence; (iii) the application of the so-called ‘repetition rule’ in respect of online publications; (iv) the implication of ongoing publication and the extent of publication of defamatory content; and (v) the efficacy of an order to remove defamatory content on social media. Each of these is highlighted in more detail below.
Background to the case
The applicant sought a final interdict against the respondents – the Economic Freedom Fighters (EFF) and two of the senior leaders of the party, Mbuyiseni Mdlozi and Julius Malema (represented by Ian Levitt Attorneys) – for the publication of an allegedly defamatory statement on Twitter. According to the applicant – former Minister of Finance, Trevor Manuel (represented by Webber Wentzel Attorneys) – the order sought was necessary to vindicate his good name and reputation.
The context of the tweet arose from the recommendation of the Nugent Commission of Inquiry for the removal of the former Commissioner of the South African Revenue Service (SARS), and the appointment of a replacement. Mr Manuel was selected as the chair of the panel that would oversee the process of finding a suitable candidate to recommend as the replacement. However, in respect of the interview of Edward Kieswetter, Mr Manuel recused himself as the candidate had been working at SARS while Mr Manuel was the Minister of Finance. Mr Kieswetter was ultimately recommended by the panel as the preferred candidate and appointed by the President as the Commissioner of SARS.
On 27 March 2019, the EFF published a statement on its official Twitter account, titled “The EFF rejects SARS Commissioner interview process”. The statement alleged, among other things, that:
It has now emerged that … one of the candidates who was interviewed and favoured by the panel is a dodgy character called Edward Kieswetter, who is not just a relative of Trevor Manuel, but a close business associate and companion.
Kieswetter used to be a Deputy SARS Commissioner, unlawfully appointed to that position by Trevor Manuel when Pravin Gordhan was SARS Commissioner. Kieswetter was in SARS during the time of the illegal intelligence unit established by Pravin Gordhan, to hound off political opponents and commit corruption.
After SARS, Kieswetter joined Alexander Forbes and was subsequently removed from the company due to alleged corruption and unethical conduct. After Alexander Forbes, Kieswetter became a vice chancellor of an institution whose academic credentials are questionable. This is now a candidate whom Trevor Manuel and Tito Mboweni want to impose into SARS.
The High Court held that the EFF’s statement was defamatory per se, as the tweet implied that Mr Manuel was dishonest, unscrupulous and lacking in integrity. In the High Court’s view, it was without doubt that the statement would generally tend to lower Mr Manuel’s reputation in the estimation of right-thinking members of society. The High Court held further that the respondents had failed to establish any of the defences raised to rebut the unlawfulness of the statement.
There are several notable aspects of the High Court’s order. First, it comprised several components: declaratory relief; interdictory relief; pecuniary relief; and an unconditional retraction and apology. Second, given that the case was instituted as an interdict application, the High Court awarded damages for the defamatory statement without there having been a full trial in the matter, as is typically required in defamation cases. Further, the High Court’s award of R500 000 in general damages in favour of Mr Manuel is one of the largest awards in South African defamation case law. Moreover, the High Court ordered what it described as a “permanent interdict” against the respondents, in order to prevent future defamatory statements that “says or implies that the applicant is engaged in corruption and nepotism in the selection of the Commissioner of the South African Revenue Service”. Lastly, the High Court ordered punitive costs against the respondents.
In various respects, the publication of the defamatory statements being on an online platform influenced the determination and order of the High Court, in light of the particular characteristics that such online platforms present. This is discussed in turn below.
A consideration of the ordinary social media user
As a point of departure, the High Court was required to determine the ordinary meaning of the impugned statement. In line with the existing principles of the law of defamation under the common law, the test applied is an objective one, taking into account what meaning the reasonable reader of ordinary intelligence would attribute to the statement.
However, as noted by the High Court, the standard of what constitutes a reasonable or ordinary member of the public can be difficult to articulate. In this regard, the High Court emphasised that the publication occurred through a tweet on Twitter, rather than through the more traditional publications of a newspaper or broadcast. As such, in this context, the High Court explained that “[t]he hypothetical ordinary reader must be taken to be a reasonable representative of Twitter users who follow the EFF and Mr Malema and share his interest in politics and current affairs”.
This finding gives some guidance as to what courts will take into consideration when determining the ordinary social media user. First, regard should be had to the platform itself and the community of users within that platform. Second, and more specifically, regard should be had to the particular users who follow the person responsible for the initial publication, presumably because these users would be the ones most likely to read or view the impugned content. Third, in discerning the reasonable representative of users, the High Court also had regard to such a user having shared interests with the person responsible for the initial publication, which in this case related to politics and current affairs.
In applying this objective test, the High Court concluded that the impugned statement was defamatory per se, as a reasonable person of ordinary intelligence would understand the tweet to mean that Mr Manuel was dishonest, unscrupulous and lacking in integrity, and would generally tend to lower Mr Manuel’s reputation in the estimation of right-thinking members of society.
The application of the ‘repetition rule’ in respect of online publications
One of the defences raised by the respondents, in an effort to rebut the unlawfulness of the publication, was that of truth and public interest. However, the High Court held that the respondents’ claim that it had published the words with an honest belief in the truth thereof, based on the reliable information provided by an anonymous source, did not absolve them from liability.
Of particular importance, the High Court referred to the ‘repetition rule’, a well-established principle under the common law. The repetition rule provides that persons who repeat a defamatory allegation made by another are treated as if they made the allegation themselves, even if they attempt to distance themselves from the allegation.
In the present matter, the repetition rule was relevant to the respondents publishing the impugned statement on the basis of information provided by an anonymous source. However, the reliance on the repetition rule arguably has broader implications when considering defamation online. In effect, the repetition rule creates a chain of publication and potentially attributes liability to each person in the chain who plays a role in disseminating the defamatory statement further. For instance, Mr Malema’s retweet also constituted a publication of the defamatory statement.
However, the High Court did not grapple with the liability of all 237 Twitter users who retweeted the impugned statement. If strictly applied, the repetition rule could arguably give rise to liability to all persons responsible for the further publication of content on social media through retweets, re-posts, and so on. This, however, has the potential to have a chilling effect on freedom of expression, and depending on the circumstances may not be a justifiable or proportional limitation of the right if applied as a blanket rule.
As a general principle, courts should be cautious in their approach to the repetition rule when it comes to social media users. In the Dutch case of State v Rechtbank Den Haag, the District Court of the Hague held that the basic rule on Twitter is that a retweet does not automatically constitute an endorsement. Rather, regard should also be had to whether it is clear from the user’s comment that he or she supports the message of the initial tweet and subsequent retweet, or whether it is clear from the context of the user’s series of tweets that the retweet conveys a similar message to the user’s own tweets. When assessing the sharing of defamatory statements on social media, South African courts going forward may similarly look to apply the repetition rule with due regard to the user’s express support for the initial statement, as well as the context in which the defamatory statement is shared, without automatically presuming that all users who retweet or re-post such statements are necessarily liable if faced with a claim of defamation.
The extended application of the reasonableness defence
Another defence raised by the respondents was that of reasonableness. In this regard, in the case of National Media Ltd and Others v Bogoshi, the Supreme Court of Appeal developed the reasonableness defence as follows: “[T]he publication in the press of false, defamatory allegations of fact will not be regarded as unlawful if, upon consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in a particular way and at the particular time”.
While that judgment focused specifically on the availability of the reasonableness defence to the press, the High Court in the present matter made clear that it saw no justification to limit the defence of reasonableness to the media only, as this limitation would not be justifiable under section 36 of the Constitution.
However, on consideration of the respondents’ conduct, the High Court held that the defence was of no assistance to the respondents, as they had failed to show that it was reasonable in the circumstances to publish the particular facts, in a particular way and at the particular time. Notably, the High Court pointed out that the EFF had not taken any reasonable steps to verify the defamatory allegations or to allow Mr Manuel to respond before publication, which are relevant considerations in establishing the veracity of the defence of reasonableness under the common law.
The relevance of this is two-fold. First, the High Court has extended the defence of reasonableness beyond members of the media, to have it apply to all members of the public who may seek to rely on it as a defence to a defamatory statement. Second, the ordinary principles of the reasonableness defence continue to apply – notwithstanding the identity of the person responsible for the publication or whether the publication took place on- or offline – including considerations of the nature of the information on which the allegations were based, the reliability of the source, the steps taken to verify the information, and the offer of a right of reply.
The implications of ongoing publication and the extent of publication of defamatory content
In deciding the appropriate order, the High Court noted that it had taken into account the following factors in determining the seriousness of the defamation: the nature of the defamatory statement; the extent of the publication; and the reputation, character and conduct of the parties.
First, with regard to the extent of the publication, as the High Court correctly noted, a statement on social media is capable of reaching millions of persons more instantaneously than printed copies of newspapers, for example. In the present matter, the EFF had over 725 000 Twitter followers, and Mr Malema (who had retweeted the impugned statement) had over 2 million Twitter followers. While the precise number of persons who viewed the tweet may not be known, the borderless nature of social media platforms certainly gives rise to the possibility to reach vast audiences around the world.
Second, with regard to the conduct of the respondents, the High Court was of the view that the respondents’ conduct – both before and after the publication of the impugned statement – showed that they were actuated by malice. In this regard, the High Court noted that the tweet had been published “with reckless indifference as to whether it was true or false”, and the statement remained published online despite it being subsequently shown to be false. The High Court noted further that the respondents had refused to take it down, and held that “[t]here can never be a justification for the ongoing publication of a defamatory statement which has been revealed to be untrue unless the principal purpose is to injure a person because of spite or animosity”.
In determining the appropriate remedy, the High Court went on the state that: “[The respondents] stubbornly refuse to retract, apologise or remove the impugned statement from their social media platforms, when it is evident that they should do so. These factors collectively establish the existence of actual malice and a desire to hurt Mr Manuel in his person, and professionally, through the widespread dissemination of the defamatory statement”.
This appeared to have a direct impact on the ultimate order made by the High Court. For instance, it motivated the High Court to grant Mr Manuel a significant award of R500 000 in general damages. Further, it led the High Court to grant Mr Manuel what it described as a “permanent interdict” against the respondents to prevent future defamatory comments, on the basis that Mr Manuel had a reasonable apprehension that the EFF and other respondents would commit further injuries of the same kind if an interdict were not granted, given that they had “steadfastly refused to acknowledge their wrongdoing or to take down the defamatory statements”. Moreover, this conduct formed the basis on which the High Court made a punitive costs order against the respondents.
The efficacy of an order to remove defamatory content on social media
A key component of the order of the High Court was to require the respondents to remove the impugned statement, within 24 hours, from all their media platforms, including the EFF and Mr Malema’s Twitter accounts. Further, the High Court ordered the respondents to publish a notice on all their media platforms on which the statement was published, in which they unconditionally retract and apologise for the allegations made about Mr Manuel in the impugned statement.
While this part of the order is important, it is not a complete answer. According to the Twitter Help Centre, the deletion of a tweet does also remove all retweets from Twitter.com, Twitter for iOS and Twitter for Android. However, the deletion of the original tweet does not remove the following: any tweets in which other persons have copied and pasted part or all of the text into their own tweet; retweets in which persons have added a comment of their own; and tweets which may be cached or cross-posted on third-party websites, applications or search engines.
As such, ordering the respondents to remove the impugned tweet does not necessarily have the desired impact of removing the tweet entirely from all online platforms. This is a particular challenge that social media platforms pose when seeking to find an effective remedy to a successful claim of defamation. In some instances, closer engagement with the platforms themselves may assist parties to develop remedies that enhance the efficacy of such an order. Further, seeking to ensure the widespread dissemination of a retraction and apology also serves as a useful strategy to correct any false impression created by the defamatory statement.
Social media platforms have undoubtedly played a crucial role in facilitating the exchange of information and ideas from diverse sources. As noted by the High Court:
Because of social media platforms like Twitter, Facebook and others, ordinary members of society now have publishing capacities capable of reaching beyond that which the print and broadcast media can. Twitter users follow news in general on the service worldwide. They get their news either through scrolling their Twitter feeds or browsing the tweets of those they follow. When there is breaking news, they become even more participatory, commenting, posting their opinions and retweeting. Statements are debated and challenged, and people can make up their minds on the issue.
However, this relatively new medium also presents unique challenges to curbing the spread of wrongful publications and finding effective remedies for persons who have been defamed online. For now, referring to ‘social media law’ in the South African context is a misnomer, as there is no separate body of law that applies. Rather, the existing principles of law – including the constitutional right to freedom of expression and the principles of the law of defamation under the common law – continue to find application both on- and offline.
It would, however, be naïve to ignore the particular exigencies that arise in respect of online publications. At present, this does not necessarily call for new regulation, but rather for more practical and informed consideration by policy-makers, judges and other relevant stakeholders to determine effective approaches that apply the old principles in a manner that is suitable to the new media platforms. While the EFF has already issued a press statement indicating that it will be appealing the judgment, the High Court ruling nevertheless provides important guidance for the time being on the application of the law to defamation online. While this remains a burgeoning area of our law, ongoing regard must be had to the implications that social media has on the rights and expectations of users and third parties, and the necessary safeguards required to ensure that we approach the evolution of technology through a rights-based lens.
Avani Singh is a Director and Co-founder of ALT Advisory. Avani writes in her personal capacity and her views do not necessarily constitute the views of ALT Advisory.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].