South Africa's media defamation law in a constitutional, digital age

Abstract

The rights to freedom of expression and dignity do not discriminate and apply equally to all South Africans. There was a time when the ability to impart information on a large scale belonged to a tiny percentage of society. Prior to the 1990s the media were South Africa’s gatekeepers of information in the public interest. Today, regular South Africans who are not affiliated with the media have information publication and distribution abilities that exceed that of traditional media sources such as newspapers and magazines. The ability to damage reputations on a large scale was previously unique to the media. Today, any person can ruin another’s reputation with the click of a button. Although media members and regular persons are equally able to defame, the law still distinguishes between media defendants and non-media defendants in defamation cases based largely on the powerful position and exclusive abilities the media once held. The differentiation affects liability in terms of the presumptions of wrongfulness and fault that arise where defamation occurred. In order to disprove the presumption of wrongfulness where defamation occurred, media defendants may use the exclusive defence of ‘reasonable publication.’ By proving that they had acted reasonably in publishing the defamatory content, media members can evade liability. In order to be held at fault for defaming, media members need only have been negligent, whereas intention is required on the part of non-media defendants. The law of defamation balances the rights to freedom of expression and human dignity in a way that must be constitutionally justifiable.