REPORTING A COURT CASE ARISING FROM FALSE SOCIAL
Case Note on Mushunje V Zimbabwe Newspapers HH-47-17
BY G. FELTOE
THE FALSE SOCIAL MEDIA REPORT
The facts of the Mushunje case show how false and highly defamatory information published on a social media website can spread like wildfire and do enormous damage to the reputation of a person. In this case the damage was to a well-known professional model who was falsely accused of serious child abuse.
The events leading to an action for defamation by the plaintiff against the Zimbabwe Newspapers were as follows: a social media site published a decidedly damaging article about the plaintiff. It alleged falsely that the plaintiff was HIV positive and had injected her HIV tainted blood into the son of her boyfriend. She was also alleged to have made the child drink her urine and to have physically abused the child. Based on these publications, the mother of the child filed a complaint against plaintiff with the police. The social media site then published another article alleging that plaintiff had been arrested. Charges of child abuse were then brought against the plaintiff but she was acquitted on all charges after medical tests on both the child and the plaintiff showed that neither was HIV positive, nor did the child exhibit any signs of abuse.
THE ZIMPAPERS STORY
Zimpapers published a series of articles about this matter which were also posted on its website and this resulted in a number of international online sites re-publishing the same story. The newspaper articles dealt with the court case and the acquittal, and ended up pointing out the injustice to which the plaintiff had been subjected as a result of the false allegations levelled against her.
In addition to an action for defamation against the website which had originated the false story, the plaintiff sued Zimbabwe Newspapers for defamation based upon its reporting of this matter in its two newspapers, The Herald and H-Metro.
Plaintiff alleged that newspaper articles were unfair, unbalanced and inaccurate and failed to make it clear in its reports that there were merely allegations against the plaintiff instead of presenting them as facts. The plaintiff said the defendant’s reporters had not approached the plaintiff to obtain her side of the story. The plaintiff also argued that the newspapers continued to report the allegations long after the results of the medical facts were already in the record.
The reporters of the defendant admitted that they had read the story on the social website but maintained that they had based their reports solely on the public court proceedings. The court accepted this. The reporters said they did not seek to interview the plaintiff during the court proceedings because this would have amounted to interference with court proceedings which were underway but, after the plaintiff was acquitted, they interviewed her and published what the plaintiff said in the interview.
WHETHER THE STORIES WERE DEFAMATORY
The court accepted that the articles were defamatory although, confusingly, later the judge said that she was “not convinced that the articles were unfair, unbalanced and inaccurate and are thus defamatory of the plaintiff as alleged.” (Emphasis added by case noter.)
DEFAMATION OF PUBLIC FIGURES
The court erroneously stated that in an action for defamation by a public figure such as a celebrity or a politician, the plaintiff must establish that the defamatory statement was made “with actual malice or reckless disregard for the falsity or otherwise of the statement.” The judge derives this requirement from the American case of St Amant v Thompson, 390 U.S. 727 (1968). This approach, which was originally enunciated in the case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), is squarely based on the emphatic freedom of the press guarantee in the First Amendment to the American Constitution. This extremely high burden of proof on the plaintiff has meant that defamation claims by public figures in America rarely prevail. The American approach has not been followed in Zimbabwe and it is not correct that in our law a public figure can only succeed in an action for defamation if it is shown that there was malice or reckless disregard for the falsity or otherwise of the statement by the press in publishing the statement.
Indeed in South Africa, under South African common law, the press was strictly liable for defamation. However, in a series of constitutional decisions the South African courts have decided that there was a need to balance the right to untarnished reputation against the right to freedom of expression and the duty of the press to inform the public about matters of public interest. This has led the South African courts to modify the strict liability approach by providing that a newspaper is entitled to a defence where it publishes a story in the public interest believing it to be true after taking all reasonable steps to check the facts even if the story turns out to be false. In effect a newspaper will not be liable if it was not negligent. The courts have said that some latitude must be allowed to the press in order to allow robust and frank comment in the interests of keeping members of society informed about what Government is doing or has done and revealing abuses of power in the public and private sectors. Errors of fact should thus be tolerated, provided that statements are published justifiably and reasonably: that is, with the reasonable belief that the statements made are true.
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