Freedom of expression
The right to freedom of expression is contained in section 16(1) of the Constitution. This provision states that everyone has the right to freedom of expression, which includes:
- freedom of the press and other media;
- freedom to receive or impart information or ideas;
- freedom of artistic creativity; and
- academic freedom and freedom of scientific research.
The Constitutional Court has acknowledged that freedom of expression protects and fosters a number of values, including the pursuit of truth; the functioning of democracy; and individual self-fulfilment.
Moreover, the right to freedom of the media has been interpreted as protecting the "tools of the trade" that are integral to various forms of media. Thus, in one High Court case, a radio broadcaster was provided with the right to broadcast live evidence from the Hansie Cronjé match-fixing inquiry. In fact, a number of courts have recently adopted rules of precedure which permit broadcasting of court proceedings.
The Constitutional Court has also affirmed that the right of the media to report on court proceedings encompasses the right to have access to the documents filed in court by the parties to the proceedings.
Defamation law is a branch of the law of delict (or tort) which protects a person's reputation. The law of defamation seeks to find a workable balance between two conflicting rights:
- the right to an unimpaired reputation (the right to dignity); and
- the right to freedom of expression.
The law of defamation protects the reputation of a person. Reputation is defined as "the estimation or good opinion which an individual has in the eyes of society".
All natural persons are entitled to sue for defamation, as are trading and non-trading juristic persons. Political parties are also, at present, entitled to sue for defamation. However, Government as an entity is precluded from suing for defamation on the grounds that it would be a serious interference with freedom of expression if the wealth of the State, derived from the State's subjects, could be used to bring defamation actions against those subjects. This restriction is not applicable to public servants - the Supreme Court of Appeal has confirmed that a cabinet minister may also sue for defamation in circumstances where the criticism is directed at him or her as an individual, rather than at governmental policies or decisions.
The law allows a plaintiff to claim against a defendant if the plaintiff is able to prove three elements: that the defendant (a) published, (b) defamatory matter, (c) referring to the plaintiff. In respect of defamatory material published on the Internet, the High Court has held that publication takes place where the material is accessed (ie where the content of the website is downloaded).
On proof of the above three elements, the defendant is presumed to have published the matter wrongfully and with the intention of defaming the plaintiff. It is then for the defendant to rebut either of these presumptions by relying on a defence. There are three traditional defences:
- truth in the public interest: to succeed with this defence, the defendant must establish that the material allegations contained in the defamatory statement are substantially true and were made in the public interest;
- fair comment: this defence is applicable when the defamatory statement amounted to fair comment on a matter of public interest (eg an editorial or a satirical cartoon); or
- qualified privilege: the defendant will escape liability on this basis if he or she is under a legal, moral or social duty to publish defamatory matter, and the recipient has a similar interest or duty in receiving it (eg an employment reference). This defence also extends to the fair and accurate reporting of the proceedings of Parliament, courts and certain other public bodies. The defence can be rebutted if the plaintiff proves that the publication was motivated by malice.
In respect of media defendants, there is an additional defence of reasonable publication, which is also known as the Bogoshi defence (