We don't have to follow the media's rules, EFF tells Supreme Court

The EFF should not have to verify information it publishes on Twitter in the same way the media does, the party told the Supreme Court of Appeal on Monday.

The EFF was applying to appeal against the Johannesburg high court order that declared the party had defamed former finance minister Trevor Manual when it said in March 2019 that SA Revenue Service commissioner Edward Kieswetter had been appointed through corruption and nepotism.

The EFF statement, which leader Julius Malema retweeted, falsely claimed that Manuel, the chair of the panel that interviewed candidates, was a relative and close business associate of Kieswetter.

The high court ordered the EFF and its leaders, Malema and Mbuyiseni Ndlozi, to apologise and pay R500,000 in damages, saying they acted maliciously and tweeted with “reckless indifference as to whether it was true or false”.

The court also broke new ground in its judgment, developing the law to say that the defence of reasonable publication - previously only available to the media - could also apply to publication by individuals.

The reasonable publication defence protects the media from a defamation claim if, even though they published something false and defamatory, at the time that it was published they believed the information was true and if that belief was reasonable, given the steps they had taken to verify it.

But counsel for the EFF, Tembeka Ngcukaitobi, argued that the standards to be applied to political parties should be different.

The false information of the connection between Kieswetter and Manuel had been received in a WhatsApp message from a trusted source, said the EFF’s Floyd Shivambu - and they had no reason to disbelieve it.

If, at the time of first publication, the political party innocently and in good faith believed the information to be true, then it should be protected, he said.

It should also only have to verify if there was a reason to question its information from its source. To require it to seek comment, as the media was required to, would have a chilling effect on a political party’s ability to exercise its constitutional rights.

However, Ngcukaitobi was closely questioned by the justices of the appeal court about whether it could really be said that the EFF had acted innocently and in good faith.

Justice Mahomed Navsa suggested that if the WhatsApp had been sent to a journalist, the first thing the editor would have asked is what had been done to verify it.

Justice Malcolm Wallis suggested that it seemed that after the EFF received the WhatsApp message, it had “put the information in [its] pocket and waited”, doing nothing to check whether it was true. Then, he suggested, at the opportune moment politically, “launched the missile”. 

Ngcukaitobi said that questions had been asked in parliament about the interview process. But, said Wallis, they were not about the relationship between Kieswetter and Manuel.

Carol Steinberg , Manuel’s legal counsel, said it was “clear the EFF always knew it was false”.

Setting out the chronology, she said that, even before the statement by the EFF, the finance minister had published a report which said that members of the panel were required to disclose whether there was any conflict of interest. She said Manuel, the chairperson, 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. 

Then, on the day after the statement, Manuel had sent the EFF a letter to say it was untrue. But instead of taking the tweet down, Malema had tweeted that Manuel “can go to hell, we are not scared of him”, said Steinberg. 

Ngcukaitobi argued that intention should be established at the time of publication. That the tweet stayed up was only relevant for calculation of damages, not to establish whether the party was liable to begin with. What mattered was the day the information was first published.  

But Steinberg said that publication was ongoing - it was “there, one day after another” - and was never removed or corrected. If the EFF was innocent, it would immediately have taken down the tweet, she said.

Steven Budlender, counsel for Media Monitoring Africa, which was admitted as a friend of the court, argued that if the reasonable publication defence was to be extended to non-media publishers, the responsibilities that went with it also had to be extended.

Otherwise it would be a “blank cheque” and could be very dangerous, given the amount of disinformation that was published on social media.

Judgment was reserved.

This article originally appeared on TimesLive

Photo: TimesLive