CRIMINAL DEFAMATION NOT UNCONSTITUTIONAL

S v MOTSEPE 2015 (2) SACR 125 (GP)
Defamation — Elements of offence — Unlawful and intentional publication of matter concerning another which tended to injure his or her reputation — Journalist appealing conviction of defamation — Published story defamatory of magistrate — Based on incorrect facts which journalist believed to be true — Lacking intention — Appeal succeeding.
Defamation — Whether offence consonant with Constitution — — Various amici seeking to have common-law crime of defamation declared unconstitutional in regard to media — Not succeeding — Whilst existence of criminal defamation undoubtedly limited right to freedom of expression, such limitation was reasonable and justifiable in open and democratic society and was consistent with criteria laid down in s 36 of Constitution.

The appellant appealed against his conviction in a magistrates’ court for criminal defamation. The circumstances of the conviction were that the appellant, a journalist, had written an article for a major newspaper dealing with two sentences imposed by a white magistrate, one on a black man and the other on a white woman, which suggested that the magistrate was biased. It was common cause that the articles were published and, on a proper reading, it clearly injured the reputation of the magistrate, and only intention and unlawfulness were in issue. The evidence was to the effect that the appellant had relied on information received from an attorney and that he had not verified the information. On appeal the court held that, on the evidence, the appellant was clearly negligent in not taking further measures to ensure that the information he received was correct. The court held, further, that the court a quo was correct in holding that the appellant had acted hastily and had thrown all caution to the wind and in this regard the finding that he had acted recklessly was correct. Recklessness, however, did not equate to intention.
Held, further, that from the evidence it appeared that the appellant had relied on the truth of the statement and deemed it in the public interest to publish the facts. Once a person thought that the published words were covered by one of the recognised defences to a claim for defamation, such person lacked the necessary intention required for a conviction on criminal defamation. In the premises the state had failed to prove intentional publication beyond a reasonable doubt and the conviction could not stand.
Fourteen institutions applied to intervene in the appeal as amici curiae in the interests of the media and their concern regarding the effect of criminal defamation laws on the freedom of the media and the constitutionality of criminal defamation laws. They contended that the civil remedy for defamation provided adequate means to deter and prevent defamation by the media. They relied on a number of international instruments and international case law to support their argument in favour of the repeal of criminal defamation laws against the media. They contended that the common-law crime of defamation was not consistent with the Constitution and amounted to an unjustifiable limitation on the right to freedom of the media. They requested that the court should develop the common law to limit the crime to the publication of defamatory statements by persons who were not members of the media.
Held, that there could be no doubt that the right to freedom of the media was of critical importance and the media stood in a distinct position relative to the general right to freedom of expression.
Held, further, that the request that the criminal defamation law be declared unconstitutional undermined the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Almost all of the international instruments and international case law referred to by the amici in support of their argument involved the condemnation of extreme situations of governmental abuse of journalists. These examples did not find application in South Africa where journalists and citizens enjoyed the benefit of the law and the Constitution.
Held, further, that freedom of expression did not have a superior status to other rights under the Constitution.
Held, further, that a criminal sanction was indeed a more drastic remedy than the civil remedy but that disparity was counterbalanced by the fact that the requirements for succeeding in a criminal defamation matter were much more onerous than in a civil matter and these onerous requirements in the case of criminal defamation would probably be the reason for the paucity of prosecutions for defamation compared to civil defamation actions.
Held, further, that prosecution of media journalists who committed a crime of defamation was not inconsistent with the Constitution. In exercising their rights under s 16 of the Constitution, the media should also guard against rights of others, as freedom of expression was not unlimited and had to be construed in the context of other rights, such as the right to human dignity.
Held, further, that the amici failed to make out a case for the decriminalisation of defamation. Even though the defamation crime undoubtedly limited the right to freedom of expression, such limitation was reasonable and justifiable in an open and democratic society and was consistent with the criteria laid down in s 36 of the Constitution. The appeal was accordingly upheld and it was declared that the common-law crime of criminal defamation as pertained to the media was consistent with the Constitution.

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