Last Friday, 4 April 2014, the Johannesburg High Court ruled that it was ‘fair comment’ for the Democratic Alliance (DA) to label President Zuma a thief in a bulk SMS sent to over 1.5 million recipients last month. The judgment raises important questions about the boundaries of free speech in a democratic society.

The SMS stated as follows: “The Nkandla report shows how Zuma stole your money to build his R246m home. VOTE DA on 7 MAY to beat corruption. Together for change.” The SMS presumably referred to the recent report by the Public Protector, Secure in Comfort, in which she found that President Zuma improperly benefitted from public expenditure on his private residence in Nkandla, in that a considerable portion of the R246 million ‘security upgrade’ was spent on non-security amenities, including a swimming pool, visitors’ centre and cattle kraal.

The ANC sought an order from the High Court (under its electoral jurisdiction): declaring that the dissemination of the SMS contravened the Electoral Act and the Electoral Code of Conduct; restraining the DA from disseminating it further; and directing the DA to disseminate a retraction and apology. The ANC argued that the SMS was patently false, as nowhere in the Public Protector’s report did she state that Zuma “stole” public money to build his home.

The ANC based its case on the Electoral Act, which prohibits any person from publishing “any false information with the intention of… influencing the conduct or outcome of an election“, and provides that no person or party bound by the Code may contravene any of its provisions. The Code, in turn, states that no registered party or candidate may “publish false or defamatory allegations in connection with an election” in respect of other parties or candidates.

The Court invoked principles of defamation law to interpret the SMS – in particular, to decide whether the SMS conveyed a factual statement that President Zuma “stole“, or a comment or opinion that this was the case. The former would result in a finding that the DA published a false statement; the latter, that it communicated a protected opinion based on indicated facts.

The Court held that the Electoral Act could not be interpreted to impose ‘strict liability’ for the publication of false information, but rather that it should be interpreted purposively “to give expression to the values enshrined in the Bill of Rights and in the Constitution as a whole. Two of those values are the freedom of expression enshrined in section 16 of the Constitution as well as the right in a constitutional democracy to a multi-party system of democratic government which ensures accountability, responsiveness and openness. A necessary adjunct to a multi-party system which ensures accountability, responsiveness and openness is a liberal interpretation of freedom of expression in the context of political debate and political campaigning.”

Against this background, acknowledging that the SMS was “not entirely accurate“, the Court upheld the DA’s defence, finding that the SMS was:

• not a statement of fact but “a comment flowing from the findings of the Public Protector“;
• “an opinion that a fair person, perhaps in extreme form, might honestly hold“;
• “relevant to facts upon which it was based“; and
• therefore “fair” (in the sense understood by that word in the law of defamation), “in particular in the political environment, … in order to ensure that divergent views are aired in public and subjected to scrutiny and debate“.

The Court’s point of departure was, with respect, correct, commendable, and rightly solicitous of free speech. It rejected the suggestion of strict liability for false statements, a position that also accords with the law of defamation, where strict liability has been jettisoned. Such liability could have a chilling or inhibiting effect on political engagement, particularly in light of the criminal consequences of contravening the Electoral Act. Fault on the part of the political party concerned should certainly be required before liability will ensue.

We also agree that fair comment may be invoked in defence of a charge of publishing false or defamatory electoral speech. However, in our view the Court was wrong to uphold the fair comment defence in this case.

The crisp question is whether the SMS was presented and understood as a factual statement or as a comment based on indicated or notorious and true facts.

The test for whether a particular publication is a comment or a statement of fact is what the ordinary reader would perceive it to be. In general, the facts on which the comment is based must be plainly set out or so notorious that the comment is clearly distinguishable from the facts.

The difficulty with arguing that the DA’s SMS was a comment and not a statement of fact is evident when you put yourself in the shoes of the reasonable reader of the SMS. Would that reader believe that the DA was commenting that Zuma is a thief based on the findings in the Public Protector’s report? Or would the reasonable reader believe that the DA was stating, as a matter of fact, that this is what the Public Protector found?

Now, as a matter of principle, labelling someone a “thief” will not always be a statement of fact. It all depends on the context in which the label was used. If a member of the DA, for instance, authored an opinion piece in which the Public Protector’s key findings against Zuma, his ministers and his architect are summarised, and the author makes the statement that, against this background, Zuma is “therefore” a thief, then that would be protected comment.

But the SMS is entirely different from this hypothetical: it makes the claim, without context or explanation, that the Nkandla report (meaning the Public Protector’s report) shows how Zuma stole “your” (being the recipients of the SMS) money. As a statement of fact this is patently false because the report, while highly critical of Zuma in many respects, shows no such thing. It does not show that Zuma stole money. We submit that the terms of the SMS leave little room for the reasonable reader to regard its contents as a statement of the DA’s opinion based on the findings of the Public Protector. The SMS states, as a fact, that the report itself reaches the conclusion that Zuma has stolen money to build his home; it does not state, as a comment, that this conclusion may or must be drawn from the report. This is an important distinction.

We agree with the High Court that “[t]he right of any political party robustly to enter into political debate and disagreement with any other political party is of the essence of the conducting of a free and fair election.” And we agree with Professor Pierre de Vos that courts should not adopt a strict interpretation of the Electoral Act which would impose unacceptable limits on speech and could impoverish political debate. However, the dissemination of defamatory messages directly and privately to voters, conveying incorrect factual conclusions rather than accurate information, or protected opinion, may undermine the process of public democratic debate among political parties, and thus go against the salutary rationales for free speech.

This is more especially the case with electoral messages by political parties: the public has the right to have access to accurate information about political parties, on which the voters themselves can draw conclusions, make fair comments, and engage in debate, ultimately with a view to casting their votes in an election. We are therefore of the view that the Court ought to have regarded the SMS as containing a false statement of fact. This is not to say that there is not an argument to the contrary, but it seems to us that the speech here fell on the wrong side of the fact/comment line.

The ANC has now announced its intention to appeal against the judgment. The law stands to benefit from such an appeal, as the proceedings in the High Court were urgent in nature, perhaps at the expense of more thorough ventilation and consideration of the legal principles at play.

In the meantime, the contents and status of the High Court judgment serves as a factual basis for fair comment on the President. The freedom of political parties to convey the contents of the judgment in electoral speech is properly subject to a standard of fair comment which accounts for their obligations to play fair under the Electoral Act. Everyone else – including civil society activists, columnists and cartoonists – may be bolder in their comments, enjoying a wide margin of freedom to draw fair inferences from facts clearly indicated, such as one of the latest cartoons from Zapiro:

© Jonathan Shapiro, reproduced with permission.

Written by Dario Milo, Partner and media law expert at Webber Wentzel, and Ben Winks, Associate

This article was first published on Milo's blog, which expresses his views on developments in media and information law.