DEFAMATION BY PUBLICATION

Preserve everything and say nothing publicly. Your diaries, travel records, correspondence and appointment books are the evidence that will either place you where the publication says you were or place you somewhere else. Secure them before you do anything else.

Then establish what the publisher actually has. A media house that intends to publish serious allegations will usually put them to you for comment. That letter is not a courtesy. It is the publisher building its own defence, and the reply you give becomes part of the record. Answer it with advice, not in anger.

What you must not do is respond in public before you know what you are answering. A denial issued into a vacuum gives the story a second day and commits you to a position you may not yet be able to prove.

No. Publication of defamatory matter is presumed to be wrongful. The burden then sits with the publisher to justify it.

Since Bogoshi our courts have allowed the media a defence of reasonable publication, but it is a demanding one. A court asks what the allegations were based on, how reliable those sources were, what steps were taken to verify them, and whether publication was reasonable in all the circumstances. Having a source is not verification. Having two sources who repeat each other is not verification either.

In the Bird Island matter the publisher had a manuscript and it had an account. What it did not have was a single document that survived checking.

Because reputation is not repaired by the absence of a prosecution. Our client was never charged, never arrested and never named in any court process. He was convicted in public regardless, and the absence of a charge was read as evidence of protection rather than of innocence.

This is the practical cruelty of a serious allegation published without proof. There is no forum in which you are acquitted, because there was never a case to answer. That is precisely why the remedy has to be constructed rather than waited for.

Rarely. Litigation is a tool, not a default.

A summons issued against a media house sets in motion the machinery that a media house is better resourced to operate than you are. Exceptions, special pleas, requests for further particulars, applications to compel, interlocutory skirmishing over discovery. Every one of those steps is legitimate. Collectively they consume years.

The question I ask at the outset is not whether we have a cause of action. It is which instrument reaches the outcome this client needs, in the time this client has.

Assume five years to a trial date if the matter is defended properly, and longer if it is appealed. Bird Island was resolved in the nineteen months between publication and settlement, and the substantive concessions came in the last eight weeks of that period.

Time is not a neutral factor. It is the single most important variable for an elderly or ill client, and it is the variable that a publisher with a litigation budget is content to let run.

You dismantle the publication factually and you put the result in front of the people who are accountable for it.

Those are two separate exercises and both are necessary. Facts alone, assembled and filed, achieve nothing until someone with authority has to look at them. Pressure alone, without facts behind it, is bluster and a publisher will treat it as such.

Because the legal department is paid to defend the publication and the board is not.

A letter to the legal department is answered by people whose function is to test your case and manage the exposure. A letter to the chairman asks a different question of a different audience. It asks whether this is a publication the company is prepared to stand behind, which is a governance question, not a litigation question.

In Bird Island that letter went to Koos Bekker. It did not threaten a lawsuit in the abstract. It set out the fabricated evidence point by point and asked what had become of the company’s core values and ethics. The terrain shifted at that moment. Naspers was no longer being asked by a lawyer to defend a book in a courtroom. Its leadership was being asked, in public, whether it stood behind defamation.

It is public, and that is deliberate, but it is not a press release. An open letter works only if every assertion in it is correct and independently checkable, because it will be checked, by the publisher and by every journalist who reads it.

That is also its discipline. You cannot overstate a single fact in a letter you intend to publish. The moment one point in it fails, the whole instrument fails and you have handed the other side its defence.

Ordinary, unglamorous verification, applied to every load-bearing claim.

In Bird Island the allegations required boys to have been flown by military helicopter to an island off Port Elizabeth. So we asked what a flight of that kind leaves behind. There were no military helicopter logs. The island had no fuel cache capable of supporting the flights. Witnesses changed their accounts between tellings. Our client’s official diaries placed him in other provinces, and on some dates on other continents, when the book had him on the island. The secret dossier that had been widely publicised did not exist.

We also relied extensively on independent investigative work, including that of the journalist Jacques Pauw. Corroboration from someone with no stake in your fee is worth more than any submission counsel can make.

Not on its own. Your claim runs from publication, not from the events described, and the ordinary prescription period is three years from the date the claim arose. A book published today about the 1980s is a fresh publication.

Age cuts the other way too. Allegations about events forty years ago are exceptionally difficult for a publisher to substantiate and comparatively straightforward to test, because the records that would corroborate them either exist or they do not.

It is exceptionally rare, and it was not achieved in one step.

On 3 March 2020 NB Publishers accepted that the contested statements could not be verified independently, apologised to our client, and withdrew unsold copies and the e-book. On 17 April 2020 it went further and withdrew both the English and Afrikaans editions in all formats, with no reprint, and apologised for the harm caused to the Malan and Wiley families. On 28 April 2020 Media24’s chief executive issued an unreserved apology on behalf of the company, stated that the allegations were unfounded, and announced the settlement.

Three concessions, each further than the last. That escalation is what tells you the pressure was working, and it is why you do not accept the first offer as the ceiling.

For most clients it is worth more than the money, and our courts now treat a retraction and apology as a remedy in their own right rather than as mitigation of damages.

What matters is its content. An apology that expresses regret for distress caused concedes nothing. The apology you want states that the allegations were unfounded, says so unconditionally, and is published by the same organisation, in the same forums, at a comparable prominence to the original publication. Anything less repairs the publisher’s position rather than yours.

That is a decision for the client, and it is worth taking deliberately rather than by default.

It changes the atmosphere and it changes very little in law.

Co-author Mark Minnie was found dead of a gunshot wound on 13 August 2018, days after the book was released. The public read it as a cover-up, and the unverified claims in the book hardened into accepted fact. In November 2018 the police confirmed that forensic results showed the death to have been a suicide.

Your claim lies against the publisher, which remains in existence and remains accountable for what it chose to put into circulation. The death of a source does not transfer his credibility to his manuscript.

Not in defamation on behalf of the deceased. Our law does not recognise an action for defaming a person who has died, which is why allegations against the dead are made so freely and answered so seldom.

A family member who is himself defamed by the publication has a claim of his own. Beyond that, what the family can realistically obtain is what the Malan and Wiley families obtained here, which is an apology extracted by someone else’s matter. That is an uncomfortable feature of the law and clients should be told about it plainly at the outset.

No, and the distinction matters enough to state directly. Allegations of the abuse of children must be investigated wherever they are made. That is precisely why they must be evidenced.

Our client’s case was never that such abuse does not happen. It was that the specific claims made against him were unsupported by any evidence, and that the publisher had put them into the world without verifying them. A publication that cannot survive checking does not serve victims. It discredits the subject and makes the next account harder to believe.