Interdicting the Media – A Losing Strategy

Source: Aslam Moosajee of Denys Reitz Attorneys

When faced with the prospect of being implicated in a story by an investigative journalist, many influential business people instruct their lawyers to urgently apply to court to prevent the publication of the story. Generally such applications for an interdict are ill-advised, because our courts approach attempts to restrain publication with caution.

When dealing with an application to suppress publication, our courts weigh up the right to freedom of expression entrenched in section 16 of our Constitution (which includes freedom of the press and freedom to receive or impart information and ideas) with the rights of human dignity and privacy entrenched in sections 10 and 14 of the Constitution. The cases of Mandela v Falati 1995 (1) SA 251 (W) and Hix Networking Technologies v System Publishers (Pty) Limited and Another1997 (1) SA 391 (A) illustrate that our courts generally steer a course “as close to the preservation of the freedom of expression” as possible.

The caution with which you should approach an application to interdict publication also emerges from a recent Supreme Court of Appeal (“SCA”) case. In Midi Television (Pty) Limited v Directorate of Public Prosecutions (Western Cape) (SCA Case No. 100/06), Nugent JA stated:

“… a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause … is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then, a publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person having access to information.”

The court also went on to state the following:

“Where it is alleged, for example, that a publication is defamatory but it has yet to be established that the defamation is unlawful, an award of damages is usually capable of vindicating the right to reputation if it is later found to have been infringed, and an anticipatory ban on publication will seldom be necessary for that purpose. Where there is a risk to rights that are not capable of subsequent vindication, a narrow ban might be all that is required if any ban is called for at all”. 

You should therefore not assume, the court said, that once an infringement of rights is threatened, a ban should immediately ensue, least of all a ban that goes beyond the minimum that is required to protect the threatened right.

An application to interdict the publication of defamatory matter often turns out to be counter-productive. Even if such an application is successful, it often results in greater publicity. A case which illustrates this outcome is the recent interdict that was granted in favour of Mafika Sihlali (the SABC’s Legal Services Head) against the Mail & Guardian. Even though the Mail & Guardian was gagged, details of the court application were widely reported in the media. Notwithstanding the interdict, a number of other newspapers and radio stations latched onto the story and started investigating. Subsequently the Sunday Times, on two consecutive Sundays, published details of the allegations that have been levelled against Mr Sihlali.

Interestingly the interdict that was granted was a temporary interdict and on the return date, the court discharged the interdict and ordered Mr Sihlali to pay the Mail & Guardian’s costs. After this case, the Mail & Guardian’s editor justifiably commented:

“Those who think that pre-publication censorship is the way to prevent damaging information from entering the public domain should reflect on Sihlali’s costly misadventure. If anything, such gagging attempts merely whet the public’s appetite for facts.”

Even if there is an actionable defamation case, a damages claim (even if successful) may be a hollow victory. Firstly the awards are low and costs are high. Secondly if the claim is eventually tried in open court, the long forgotten story will get a new lease of life.

Instead of spending thousands of rands in a costly legal battle that more often than not will fail to achieve its purpose, business people are better advised to utilise some of the funds that they would have spent on a court application, to instruct their lawyers to work with a reputable public relations company and to assist in formulating appropriate responses to journalists’ questions and criticism. By so doing, at least the other side of the story will be published and any resultant damage is controlled.