Case Law, Namibia: Trustco International v Shikongo, Supreme Court establishes defence of responsible public interest publication

10 07 2010

On 7 July 2010, the Supreme Court of Namibia gave judgment in the important defamation case of Trustco International v Shikongo (Case SA 8/2009). The Court established, for the first time, a defence of “responsible publication in the public interest” in the law of Namibia.

Background

The case was an appeal against an award of N$175,000 (£15,000) damages against the owner, editor and printer of a weekly newspaper published in Windhoek called Informanté in respect of an article which alleged his involvement in an irregular land deal.   Importantly, the appeal involved the court considering, for the first time, the compatibility between the common law of defamation and the  right to freedom of expression in Article 21 of the Namibian Constitution.

Judgment

The judgment of the Court was given by O’Regan AJA – formerly a distinguished judge of the Constitutional Court of South Africa.  She first considered the defendants’ argument that freedom of expression required plaintiff in a defamation claim might only succeed if he or she establishes that the defamatory statement was false [35].    After considering the approach in the United States and Canada and the domestic case law on justification of interferences with constitutional rights she concluded that a rule which placed the burden of proving falsity on the plaintiff would put his constitutional rights to dignity at risk [52].

The Court then considered an alternative way of protecting the freedom of expression of publishers:

“a defence of reasonable or responsible publication of facts that are in the public interest … will provide greater protection to the right of freedom of speech and the media protected in section 21 without placing the constitutional precept of human dignity at risk. The effect of the defence is to require publishers of statements to be able to establish not that a particular fact is true, but that it is important and in the public interest that it be published, and that in all the circumstances it was reasonable and responsible to publish it.”

It was held that such a defence was a proper way of balancing the constitutional rights of plaintiffs and defendants

It will result in responsible journalistic practices that avoid reckless and careless damage to the reputations of individuals. In so doing, the defence creates a balance between the important constitutional rights of freedom of speech and the media and the constitutional precept of dignity. [56]

The Court then considered the application of this defence to the facts.  It noted that one of the most importance considerations was whether the journalist concerned acted in the main in accordance with generally accepted good journalistic practice [75].  After considering the factual background it upheld the first instance ruling that the publication was not responsible.  However, taking into account other defamation awards in Namibia it reduced the damages award to N$100,000.

Comment

The case is an interesting one because it shows another common law jurisdiction arriving at a “responsible publication” defence similar to Reynolds. The Court conduct a balance between freedom of expression and the right to dignity protected by the tort of defamation and adopted the responsible publication defence as striking the appropriate balance between the two.

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11 07 2010
Law and Media Round Up 11 July 2010 « Inforrm's Blog

[...] In the case of Trustco International v Shikongo (Judgment of 7 July 2010), the Supreme Court of Namibia reduced the record defamation judgement of N$175 000 in favour of  Windhoek Mayor Matheus Shikongo against the Informanté weekly tabloid, its editor and its printer to N$100 000.  This important case is the subject of an earlier post.  [...]

29 08 2010
Table of Cases « Inforrm's Blog

[...] Judgment [...]

16 10 2011
Case Preview: Flood v Times Newspapers in the Supreme Court – allegation, balance and judgment « Inforrm's Blog

[...] in almost every common law jurisdiction outside the United States – most recently in Canada and Namibia. In the end a “balancing exercise” between the competing rights is unavoidable. As this case [...]

14 04 2013
Defamation Bill: back in the Commons with a row about corporations | Inforrm's Blog

[...] of Human Rights as well as the courts of Commonwealth countries such as Canada, South Africa and Namibia).  It should be noted, however, that other commentators, such as Professor Mullis and Dr Scott [...]

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