By Anton Harber

July 4th, 2006

Defamation will be the battleground for the media freedom wars of the foreseeable future.

This has been building up for some time, as targets of the Mail & Guardian’s investigations team, for example, have been suing or threatening to sue in a bid to silence them. Just the cost of defending such cases can have a chilling effect on a small publication.

Defamation was also one of a number of dubious reasons the SABC gave for withholding the recent “Unauthorised: Mbeki” documentary.

And now Jacob Zuma is suing a range of media for things they have said about him and his trials. He is, it is reported, including cartoonists and song-writers among the recipients of his writs, and by doing so is challenging not just the work of journalists, but that of artists and humorists as well.

One has to wonder if he is serious about this and will see it through, or if this is just another skirmish in his political wars. It might just be a tactic designed to keep his critics at bay for a while. For Zuma, as for any politician – to canvass his reputation in the courts will be a large and costly risk, as he will be inviting the media to dig for further information about him and his reputation.

It is not an unexpected development for defamation to come to the fore in this way in a constitutional democracy still working out just how much space the media should be given. In the US, the rights of the media to say tough things about those in power was fought around a 1960 libel case known as New York Times versus Sullivan. The case threatened to intimidate the national press and broadcasters from covering the civil rights protests, journalist Anthony Lewis wrote in his riveting account of the case, Make No Law. It was an epic legal battle, one that was crucial to the continuing freedom of the American press.

In that case, the US Supreme Court rule that to succeed in a defamation charge a public figure needed to show “actual malice” on the part of the media. It was not enough to show that what was said was untrue and harmful, because the court recognized the value and importance of allowing the public to debate and discuss the conduct of public officials.

Justice Brandeis wrote the classic formulation of the argument when he said the US Founding Fathers believed that public discussion is a political duty “it is hazardous to discourage thought, hope and imagination; that fear breads repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”

The implication is that the public interest in promoting debate and discussion is more important than the need to protect politicians, even from damaging and erroneous criticism.

This stands in fundamental contradiction with those who are beginning to argue that the office of the president needs protection against insult (as SABC board member Thami Mazwai did), a hint that some will push for the “insult laws” which have been used against journalists in a number of African countries.

In truth, in a constitutional democracy, it is hard to defame a president, because all but the most ridiculous things you might say about him or her can almost always be justified as part of the important national debate. And that is why the SABC’s suggestion that their documentary was “incurably defamatory” is so dubious.

Zuma must be given credit for putting his money where his mouth is. When he launched a broad and generalized attack on the media, a number of us challenged him to be specific and take action if he felt hard done by. Now he is doing so.

I would welcome the case going all the way to the Constitutional Court. It will clear the air and make a fascinating case. What will be at stake will be two different views of democracy: one which favours openness and debate when it can be harsh, hurtful and even unfair, and one which is prepared to curtail open debate in order to limit the worst excesses of the media. What’s worse, the courts will ask: badly-behaved media or badly-behaved politicians?

I think the answer is easy, and the judges will have no trouble getting to it.

This column first appeared in Business Day, July 4 2006