Constitutionally Speaking, Streisand Effect, and Continue Elaborating #SALaw

Words, like social media, are very powerful.  They are used to inform, entertain and educate the public, readers and listeners.   Words can be used to expose faults or abuses in society and to identify people who are to blame.    In common law, a matter normally has to be false to be considered defamatory.

The law is there to protect a person’s reputation in the community or society.   The law is not there to protect the reputation that he would like to have.

B Martin CC contends that defamation is the most common law used against citizen protest, but others are used such as business torts, conspiracy and judicial process abuse. These uses of the law have been dubbed “Strategic Lawsuits Against Public Participation” or SLAPPs.  Companies have little chance of success in these suits, but that doesn’t matter.  The main object in a SLAPP is to intimidate citizens, discouraging them from speaking out.  He goes on further to state:

If you are threatened with a defamation action, one strategy is to just ignore it and carry on as before.  Alternatively, invite the threatener to send the writ to your solicitor…The main thing is not to be deterred from speaking out.

Just because you are sued doesn’t mean you can’t say anything more. (Many organisations avoid making comment by saying that an issue is sub judice [under judicial consideration] but that’s just an excuse.)  You can still speak. In particular, you can comment on the defamation action itself and its impact on free speech.

A powerful response to a defamation suit is to expand the original criticism.

Martin also cites what I consider to be a rather amusing case which had the exact opposite effect the plaintiff was seeking.  In it  he says “Helen Steel and Dave Morris, members of London Greenpeace, produced a leaflet critical of McDonald’s. McDonald’s sued. Steel and Morris, with no income, defended themselves. They used the trial to generate lots of publicity. Because of the trial, their leaflet has reached a far greater audience than would have been possible otherwise. The whole exercise has been a public relations disaster for McDonald’s.”

2013 February – Constitutionally Speaking.

What a wonderful read this was.  It is always inspiring to read an article written from a place of knowledge and experience, when clearly the author has examined every aspect of his post pre-publication.

I particularly enjoyed:

When you sue somebody for defamation, you usually make things worse by attracting attention to the offensive comment. When you do not laugh off a slightly unhinged comment like that, your response sends a signal that the comment really hurt you and might actually be close to the truth. And if you then threaten to sue or actually sue, you might well further harm any reputation you might have left – instead of protecting it from harm.

And of interest to some might be the following:

Once you have convinced a court that statements made about you are defamatory, it is presumed that the publication was both unlawful and intentional. If you want to avoid liability for making such prima facie defamatory statements, you will have to raise a defence which either shows that the statements were not made intentionally or were not unlawful. As the Constitutional Court explained in Khumalo v Holomisa:

Although not a closed list, the most commonly raised defences to rebut unlawfulness are that the publication was true and in the public benefit; that the publication constituted fair comment and that the publication was made on a privileged occasion.

This means you will not be liable for defamation if you can show to a court that what you had said was both true and was on a matter that was in the public interest.

From WebTech Law arises another interesting scenario recently played out where, it seems, hard-done-by’s allegedly threatened an urgent interdict.  They didn’t like what someone wrote, which that someone reasonably believed was true.

…. some of the challenges that the Courts will face enforcing an interdict (like in this matter) will be how to quantify the damages to compensate for the possible loss of profit suffered… as the internet has almost infinite reach and it could become challenging to determine the impact of the publication.  A further hurdle which the courts may face in enforcing the interdict is the fact that trying to remove something from the internet is like trying to remove pee from a pool. It would be very difficult to remove the report as well as the Twitter and Facebook comments as the news has been spread so far and wide by now that it becomes almost impossible to prevent people from viewing it. To tie into that, a phenomenon which has been starting to merge in similar cases to this one is something called the “Streisand-effect”. The just of this is that ….. by attempting to remove information or statements, etc more attention is brought to whatever it is that you are trying to remove, with the effect that it has the complete opposite effect than what it was attempting.

The test for defamation is called “the objective reasonable person test” and can be summarised as follows:

A reasonable person is fictional, normal, well-balanced and right-thinking person with normal emotional reaction and a person of average intellect and knowledge, in other words, not a person with expert knowledge on defamation, or the law.

Any judge in South Africa looking at any action or motion proceedings is required to apply the “reasonable person test” when assessing any action…  If it is true, if it is an opinion based on truth, if it is in the interests of the public, it if can be substantiated by documentation and research – is it REALLY defamation?

I question the agenda of any person who rushes out in defence of an article when, in fact, there may be little or no defence at all, but attempt, by employing intimidation tactics, to brush expressed opinion and fact under the carpet.  There is a universe of information available before going all out on a limb, which could have the absolute opposite effect to what he/she is attempting to achieve.

Beware that you bring any legal proceedings against any person who has a valid and reasonable basis for what has been written.  Beware that your intended intimidation and threats are not brought about by trying to conceal the truth.