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Moti vs amaBhungane ruling – there is much to celebrate, but we need more

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William Bird is the director of Media Monitoring Africa, Ashoka and a Linc Fellow.

The judiciary needs to seriously consider how it will respond to baseless cases, and the government needs to look at possible Slapp suit interventions, including the possibility of anti-Slapp laws.

The response to the judgment in the Moti vs amaBhungane case has thus far been overwhelmingly positive, and media organisations, ourselves included, have welcomed the outcome. The ruling was important as a vindication of the importance of media freedom, of the need for journalists to protect their sources, to disallow efforts that seek to abuse the court system and to highlight the importance of journalists exposing wrongdoing. This piece by amaBhungane sets out the key issues well. 

In our (South African National Editors Forum, Media Monitoring Africa, and the Campaign for Freedom of Expression) submissions as amici, and represented by Power Law, we argued that the case was also about Slapp suits and the weaponisation of our courts. Slapp is an acronym for Strategic Litigation Against Public Participation and refers to cases where well-resourced entities seek to silence opposition voices and views by tying them up in litigation. Big corporates, for example, may seek to silence an NGO that is exposing environmental damage by the company. The same strategies have been used against the media. Recently the efforts to silence journalist Karyn Maughan by trying to have her criminally charged were also found to be a form of Slapp suit. In that case the actions of seeking to have Maughan criminally charged were found to be an abuse of process (see paragraph 197 of the judgment). 

Another aspect that the amici in that case (including Media Monitoring Africa, Campaign for Freedom of Expression and Sanef) and Maughan highlighted was that it wasn’t just the legal challenge that sought to silence and intimidate, but it was how the case itself was used to launch and legitimise online bullying and attacks against her.

The attacks were one reason that, in our own arguments in the Moti vs amaBhungane matter we referred to the weaponisation of the courts. An element raised by amaBhungane has been how, in addition to the special ex parte order it has found themselves on the receiving end of a well-organised PR campaign that seeks to discredit, deflect and demean – not just amaBhungane and its staff, but also the stories.

Using cases to offer a credibility hook is merely using – and in the long run undermining – the credibility of the justice system.

In Maughan’s case there was also a clear gender dynamic which made many of the attacks more vicious, since they sought not merely to discredit but to demean and humiliate. Examples cited by Maughan were also forms of online gender-based violence. She is by no means alone in the forms of online abuse she has been subjected to. This report highlights how common, brutal and misogynist such attacks are. The online abuse of women journalists, or women who express opinions on social media platforms, is so common that it would be truly astonishing if there was one woman in South Africa who has not been subjected to online abuse. That such abuse is almost endemic sees some of our strongest, most articulate, incisive and deep-thinking women journalists having to switch off all social media and even going offline for days each time they release a new story. It is testament to the strength and fortitude of women online that they continue to fight for their voices to be heard, knowing each time they express themselves they will be subjected to a deluge of bigotry, misogyny and plain meanness. 

That these levels are allowed to continue almost unabated doesn’t just affect the targeted journalists, but it sets the expectation that each time they produce a story, we can expect vitriol, denial, obfuscation and disinformation. 

The attacks also demean and undermine all our humanity. They demean all rights to freedom of expression and to receive and impart accurate and credible information. Until and unless we ensure that online spaces can be safe, they pose an existential threat to democracies and human rights.  

Nothing new

What is clear is that the case served as a legal hook on which to launch various attacks on the credibility of Maughan and amaBhungane. What we are seeing isn’t new. Indeed this is the familiar playbook of disinformers. 

Read more in Daily Maverick: Moti Group’s interdict against amaBhungane is a travesty of justice

A legal case – and going beyond the mere threat to bring one – adds a level of seriousness and legitimacy to the arguments being made. There is a sense that if people are prepared to spend significant resources on launching a case that they have at least an actual basis on which to do so. By its nature there is a sense that if it is being taken seriously in court there is a real case where diverging views will be argued by fine minds. Of course, it isn’t that – it is a false distinction. Using cases to offer a credibility hook is merely using – and in the long run undermining – the credibility of the justice system. 

What we are seeing then isn’t just Slapp suits alone, but Slapp suits built around social media disinformation campaigns. 

Importantly, in both the Maughan and amaBhungane Moti rulings, Slapp suits and the abuse of court process were highlighted. In both judgments the court was scathing about abuse of court process and in both, the consequence was not only verbal sanction, citing the abuse of process, but also involved punitive costs against those bringing the suits. While critical, it seems the biggest disincentive is economic. In the amaBhungane case punitive costs were taken further to include not just the costs of the amaBhungane legal team but also those of the amici.  

To be clear, we have much to celebrate from the ruling – the clarity of thought and highlighting of the importance of journalism, of protecting sources, of censoring media comments only in exceptional circumstances, and the financial penalty. We need more though. 

Shortly before the urgent hearing, Moti made his abundance of resources that he was willing to throw at the case very clear. While there is no doubt the financial penalty will be uncomfortable, it may not be enough to deter the Moti group from appealing. Indeed, despite the overwhelmingly negative judgment in the Maughan case against Zuma, they have already indicated that they will appeal. 

Read more in Daily Maverick: Slapp-down – activists cheer ConCourt ruling on ‘abusive’ defamation cases brought by corporations

No sooner had the ruling been handed down than the online insults and threats against Maughan ramped up once again. In an interview on Radio 702, Moti group CEO Dondo Mogajane said: “The judge in his judgment may have gotten it completely wrong, because of the technicalities that I think he focused on.” While the need to try to not look entirely humiliated by the ruling is understandable this was a breathtaking misreading of the judgment. The judge didn’t focus on the technicalities but on solid legal principles, on key principles and the abuse of process by the Moti group. Mogajane was at least correct in mentioning constitutional principles, but this is an ominous warning that rather than backing off, the Moti group is gearing up to appeal – and almost certainly ramp up its PR campaign.

There is no doubt that amaBhungane will challenge an appeal, and win, and we will be there as amici to continue to highlight the key principles at stake. What is also clear is that the costs order is not enough. The judiciary needs to seriously consider how it will respond to baseless cases, and the government needs to look at possible Slapp suit interventions, including the possibility of anti-Slapp laws

SLAPP suits don’t just impact on the target of the suit, they undermine the judiciary, use up precious resources, divert attention from real wrongdoing, and allow the powerful to think they can continue to bully and win. We need to show them that democracy will not tolerate such behaviour. DM

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  • rmrobinson says:

    I get that and why you are celebrating. For those trained in the law this outcome was always a given, considering how entirely wrong the first judgment was. For one, the authorities were dead against it. How such a judgment could have been obtained ex parte is quite beyond me. Could anyone tell us more about the judge in the court a quo?

  • geoffrey.allsop says:

    Perhaps more should also be said about the conduct of the attorneys for the Moti Group in obtaining the order in the first place (especially after they were told not to do so!)

    • Kanu Sukha says:

      Your observation relating to the role of attorneys/advocates acting for or on behalf of well resourced organisations or individuals is full of merit. Why the Daliesque type of behaviour is even permitted by judges in courts, is scandalous .

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