VIRAL VOICE
EFF defends its right to be wrong
False information — sometimes called fake news — spreads through Twitter “significantly farther, faster, deeper and more broadly” than the truth, said US research quoted in the Supreme Court of Appeal this week.
And false political news goes more viral than any other form of false information, including news about terrorism and natural disasters, and urban myths.
The study, published at ScienceMag.org in 2018, was submitted to the court by counsel for Media Monitoring Africa (MMA), which came as a friend of the court to address it on the dangers of disinformation.
The appeal court was hearing a defamation battle between the EFF and former finance minister Trevor Manuel, one of a series of cases over the past few years in which defamation was found to have occurred on social media.
Manuel said a statement by the EFF on the appointment of SA Revenue Services commissioner Edward Kieswetter deliberately spread disinformation to influence public opinion or obscure the truth.
Manuel took the EFF and its leaders Julius Malema and Mbuyiseni Ndlozi to court after they tweeted that Kieswetter’s appointment was “corrupt” and “nepotistic” because Manuel had chaired the panel that interviewed candidates for the post and that Kieswetter was his relative and close business associate.
The Johannesburg high court, in a scathing judgment last year, ordered the EFF, Malema and Ndlozi to apologise and pay
R500,000 in damages. The court found they acted maliciously and tweeted with “reckless indifference as to whether it was true or false”.
In heads of argument, MMA’s counsel, Steven Budlender SC, said that if the high court was right, the EFF’s statement fitted the definition of disinformation. This was because the statement was false; the EFF knew it was false (or at least was recklessly indifferent towhether it was false); and, crucially, the EFF allowed the statement to remain online once it knew that it was false.
However, whether the high court was correct on this score was one of the questions the appeal court must answer. The EFF’s counsel, Tembeka Ngcukaitobi SC,
said the EFF, Malema and Ndlozi acted innocently and in good faith when the statement was first published, because the information came from a trusted and well-placed source. They believed it to be true and had no reason to think otherwise, he said.
But Manuel’s counsel, Carol Steinberg, said it was “clear the EFF always knew it was false”. She said that even before the statement by the EFF, the former finance minister had published a report that said members of the panel were required to disclose whether there was any conflict of interest and that Manuel had disclosed that he was on friendly terms with one of the candidates — not that he was related — and had recused himself on that basis.
A day after the EFF statement, Manuel had sent the party a letter to say it was untrue. But instead of taking the tweet down, Malema had tweeted “He can go to hell, we are not scared of him,” said Steinberg.
In opening her address to the appeal court, Steinberg said that normally with defamation cases, a court must balance two competing constitutional rights: the right to dignity on one hand and the right to freedom of expression on the other. It is a delicate balancing act as both are valued and both serve a societal good, she said. But in this case, where the EFF and its leaders were deliberately peddling lies, there was “no gain to society” by protecting this form of expression, she said.
Budlender made a similar argument and said that when the courts apply or develop defamation law in the age of social media, they should not do so in a way that allowed or encouraged disinformation.
The point was relevant because the high court had broken new ground in its judgment, developing the law to say that the defence of reasonable publication — previously available only to the media — could also apply to publication by individuals. Another question for the appeal court will be whether to confirm this line of reasoning by the high court.
The reasonable publication defence — first set out in the famous 1998 Bogoshi judgment — protects the media from a defamation claim, even though it published something false and defamatory, if at the time that it was published it believed the information was true and took reasonable steps to verify it.
At the hearing, judge Malcolm Wallis pointed out that individuals had an easier defence available: all they had to show was that they lacked the intention to defame. But Ngcukaitobi said the EFF and its leaders in this case were in a similar position to the media.
Social media has blurred the lines on who can be regarded as media. The rationale of the reasonable publication defence was that there should be additional duties on the media because of its reach. The front page of the Sunday Times reached many more people than a guy at a braai was the example given in court.
But Twitter has democratised the media space. There are Twitter handles — Malema’s one of them — that have wider audiences than many traditional publications.
Budlender said that if the reasonable publication defence was to be extended to nonmedia, at least some of the responsibilities that went with it also had to be extended. Otherwise it would be a “blank cheque” and could be very dangerous.
Ngcukaitobi said that what should be considered reasonable for the media was different from what should be considered reasonable for political parties. Political parties should only have to verify if there was reason to question their sources. And to require a political party to seek comment, as the media was usually required to do, would have a chilling effect on its ability to exercise its constitutional rights.
Judgment was reserved.
The EFF’s statement was not expression worthy of protecting
Carol Steinberg
Counsel for Trevor Manuel