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Showing posts with label Dario Milo. Show all posts
Showing posts with label Dario Milo. Show all posts

Thursday, February 25, 2021

Despite lack of statute, anti-SLAPP blocks mining company suit as abuse of process in South Africa

Coffee Bay is a tourist destination on the Eastern Cape.
(photo by Jon Rawlinson CC BY 2.0)
Two weeks ago, a South African court recognized an anti-SLAPP defense in the absence of a statute, as an abuse of process, in a defamation case brought by mining companies against environmentalists.

In the case, mining companies Mineral Commodities Ltd and a subsidiary, and directors, sued environmentalist lawyers and activists for defamation, seeking R14.25m, close to US$1m, or in the alternative, an apology, for defendants' accusations of ecological and economic damage caused by excavation and mining projects at Tormin Mine on the Western Cape and at Xolobeni on the Eastern Cape.

Defense lawyers argued that the suit was a strategic lawsuit against public participation, or "SLAPP" suit, calculated to silence the defendants for their criticism of the plaintiffs, rather than a bona fide claim of defamation.  South Africa has no anti-SLAPP statute.  But the High Court for the Western Cape held, with reference to the freedom of expression in the South African constitution, that the judicial power to abate vexatious litigation and abuse of civil process may be deployed to dismiss a SLAPP suit.

"[T]he interests of justice should not be compromised due to a lacuna or the lack of legislative framework," the court wrote.

The court examined the history of the SLAPP as a legal strategy and traced its origin to anti-environmentalism in Colorado and recognition in the 1988 scholarship of professors Penelope Canan and George Pring.  The court discussed anti-SLAPP legislation in the United States, Canada, and Australia, including the statutes of Georgia, Washington, and New York, and the recent enhancement of the latter.  Anti-SLAPP has been recognized as meritorious in principle by the Supreme Court of Canada, the High Court observed, though anti-SLAPP is enacted by statute in only three provinces.

The court looked also to Europe, and specifically the "McLibel" lawsuit of the 1990s (1997 documentary) and 20-aughts, in which McDonald's Corp. sued environmentalists in England.  Anti-SLAPP has been debated in the European Union, the court explained, but legislation has not been enacted.  Nevertheless, the court opined, the ultimate disposition of the McLibel case in the European Court of Human Rights (ECtHR) was consistent with the principle of anti-SLAPP.  In the McLibel case, the English courts ruled in favor of McDonald's, finding some assertions in the environmentalist leaflets to be libelous.  Subsequently, the ECtHR, in 2005, ruled that British law (well before the 2013 UK Defamation Act) had not afforded the defendants sufficient protection for the freedom of speech.  

In the McLibel case, the ECtHR stressed the chilling effect on speech of the extraordinary cost burden on individual activist-defendants in defending a civil suit against a large corporation, especially in the shadow of attorney fee-shifting to the winner, which is the norm in civil litigation in the UK and most of the world.  The High Court pointed to a South African precedent that is similar on that point, Biowatch Trust v. Registrar, Genetic Resources, in the Constitutional Court of South Africa in 2009.

I have written before about Biowatch, which was an access-to-information (ATI, freedom of information, or FOI) case.  In that case, environmentalist NGO Biowatch, under South African environmental protection and access-to-information law, sought information about Monsanto (now Bayer) genetically modified organisms introduced into national agriculture.  The result in the case was mixed, and the trial court awarded the defendant government and intervenor Monsanto their substantial legal fees against Biowatch.  Subsequently, the Constitutional Court held that Biowatch should be exempt from a fee award, because such an award against a public-interest litigant would chill the exercise of constitutional rights, which, in South Africa, include the right to a healthy environment.

The exact contours of a common law anti-SLAPP defense will have to be worked out by South African courts if the High Court precedent sticks.  The instant case was not difficult for the court to map to the SLAPP paradigm:  The tort alleged was defamation.  The conduct of the defendants was expression specifically in furtherance of environmental protection.  The mismatch between plaintiffs and defendants in wealth and power was "glaringly obvious."

The plaintiffs' demand also drew the court's skepticism.  Referencing the findings of Canan and Pring in the 1980s, the court observed: "A common feature of SLAPP suits is ... a demand for an apology as an alternative to the exorbitant monetary claim."

I reiterate my dislike of anti-SLAPP laws.  I also acknowledge that anti-SLAPP measures sometimes are warranted.  South Africa in particular, in recent decades, has seen a rise in the weaponization of defamation and related torts, especially by powerful corporations and politicians, including former President Jacob Zuma.  Americans might note a parallel in former President Donald Trump, who used defamation for leverage in business and called for plaintiff-friendly libel reform.  At the same time, defamation defendant President Trump won a nearly $300,000 award against Stormy Daniels thanks to fee-shifting under the California anti-SLAPP law.

The problem with anti-SLAPP legislation in the United States is that it does not weigh factors that the Western Cape High Court took into account, such as the relative power of the plaintiff and the defendant.  Yes, anti-SLAPP laws in the United States and Canada protect environmentalists against developers.  American anti-SLAPP laws also protect fantastically wealthy and sloppy media conglomerates against individuals whose lives are ruined by mistakes and falsities on the internet, which never forgets.  The threat of fee shifting, characteristic of anti-SLAPP legislation and usually foreign to U.S. civil litigation, is especially terrifying in light of enormous U.S. transaction costs, including the high-dollar rents of American corporate defense firms.  Anti-SLAPP laws are the darling of the professional media defense bar, and, lest the journalist's aphorism be conveniently forgotten, we might ought follow the money.

For that reason, the High Court's "abuse of process" approach is intriguing.  The court's articulation of abuse of process, as applied to Mineral Commodities, while not the sole basis of the court's holding, accords with the American common law test.  The American tort may be expressed as "(1) use of judicial process (civil or criminal), (2) ulterior or improper motive, (3) process used not for its designed or intended purposes, and (4) resulting harm."

Typically, in the American context, abuse of process is exceedingly difficult to prove, because courts are generous in accepting the plaintiff's plea of honest intentions to negate the second element.  Mineral Commodities pleaded its genuineness, but the High Court was willing to doubt, sensibly, looking at the parties and the uncontroverted facts.  Maybe a bit less judicial generosity would allow abuse of process to police SLAPP better than the corporate-friendly statutes that 30 U.S. states have embraced, and for which media corporations are now lobbying Congress.

The opinion in the High Court was delivered by Deputy Judge President of the Western Cape High Court Patricia Goliath.  Her surname was not lost on commentators (below), who played on the "David vs. Goliath" ideal of anti-SLAPP.  Curiously, DJP Goliath, who served on the Constitutional Court in 2018, is embroiled presently in turmoil within the High Court.  In 2019, she alleged she had been pressured by President Zuma for favorable assignments of cases in which he was involved.  Possibly in retaliation for not playing ball, she has been, she has alleged further, subject to gross misconduct and verbal abuse, if not worse, by High Court President John Hlophe.  JP Hlophe denies the allegations.

I am indebted, for spying the case, to attorneys for the defendants, Odette Geldenhuys and Dario Milo, of Webber Wentzel, who wrote about the case for the Sunday Times (South Africa) (subscription required) and for the INFORRM blog.

The case is Mineral Sands Resources Ltd v. Reddell, No. 7595/2017, [2021] ZAWCHC 22 (High Ct. Wn. Cape Feb. 9, 2021) (South Africa).

Wednesday, January 13, 2021

'Seminal' South African defamation case instructs on limited remedial reach of American speech torts

A politician prevailed in defamation against a critic who accused him of nepotism in a South African Supreme Court of Appeal case that a media law expert called "seminal."

Julius Malema in 2011, then a member of the ANC Youth League

Economic Freedom Fighters, a self-described "radical and militant economic emancipation movement" (EFF, definitely not to be confused with the Electronic Frontier Foundation), criticized former South African Finance Minister Trevor Manuel of "patently nepotistic and corrupt process" in recommending to public appointment "a dodgy character called Edward Kieswetter, who is not only a relative of Trevor Manuel, but a close business associate and companion."  EFF published its statement on Twitter to 750,000 followers, and EFF leader Julius Malema retweeted the statement to his 2 million followers.

The Gauteng high court ruled the statement defamatory, and the Supreme Court of Appeal (SCA) affirmed in December 2020, though remanded for reconsideration of the award, 500,000 rand, about US$33,000, because of procedural error.

South African lawyer and scholar Dario Milo, also an English solicitor and expert with the Columbia University Global Freedom of Expression project, described the case as the most seminal in South African defamation law in two decades, writing about the case for his blog, Musings on the Media, the Daily Maverick, and The International Forum for Responsible Media (INFORRM) blog.  Important, Milo wrote, was that the court allowed recovery for a genuinely aggrieved plaintiff, even if a public figure, upon a dearth of evidence to support the defendant's defamatory allegation.

Trevor Manuel, when Finance Minister in 2008
Photo by Valter Campanato/ABr CC BY 3.0 BR
According to Milo, the law should not protect the likes of former South African President Jacob Zuma, who weaponized defamation in 15 suits against news media and political commentators, nor of Johnny Depp, whose suit against his ex-wife was recently bounced by English courts.  (Depp's suit resulted in an awkward factual determination that he had beat up his wife, a legal result Milo characterized as an "own goal."  I like that.)  But the genuinely aggrieved, public officials and figures such as Manuel included, deserve their day in court, he maintained.  And the SCA ruling ensures that "dignity" will not be sacrificed even on the altar of political speech.

From an American perspective, the case offers some thought-provoking points of divergence from First Amendment doctrine.  The South African common law of defamation, rooted in English common law, is not so different from the American.  But the American speech-protective doctrine of New York Times v. Sullivan (U.S. 1964), justly born of the civil rights era, but, I assert, run amuck since, marked an enduring point of divergence between America and the world.

An important if nuanced divergence arises in the problem of EFF's culpability.  As to the underlying truth of the alleged defamation, EFF was sunk; the defense could not refute Manuel's denial that he is "related" to Kieswetter.  Looking, then, to culpability, the South African court found EFF in utter dereliction of duty.  It had no facts to support the allegation of nepotism and made no effort to ascertain any.

In the United States, the Sullivan rule of "actual malice" would require a plaintiff to prove that the defendant published falsity knowingly or in reckless disregard of the truth.  At first blush, that approach might seem compatible with the South African ruling.  But in practice, instructed by a Supreme Court that places a heavy thumb on the scale to favor a defendant's political speech, the rule de facto for American journalists has been that ignorance is bliss.  However much journalism ethics might counsel a duty of investigation, courts have been unwilling to find actual malice without smoking-gun evidence that the defendant had contrary facts within reach and deliberately ignored them.

In recent years, there has been a modest uptick in litigation over alleged actual malice, and I suspect, indeed hope, that that might be a function of a correction.  Recognizing the folly of a de facto bar on defamation suits by persons in politics has undesirable collateral effects, inter alia, deterring political involvement and feeding divisive discourse.  I wonder that American judges, consciously or not, might be increasingly inclined to treat the actual malice standard more as the "recklessness" rule it purports to be.

2019 EFF campaign poster
Photo by DI Scott CC BY-SA 4.0

Another curious takeaway from the South African case is the remedy.  Though the SCA muddied the outcome with its remand on procedural grounds, the court had no substantive objection to high court orders that would raise First Amendment issues.  For in addition to the R500,000 monetary award, the high court ordered that EFF take down its statement and not repeat it subsequently, and that EFF apologize to Manuel.

American thinking about defamation has limited remedies to the reputational-loss proxy of pecuniary award.  First, to "interdict" subsequent speech, to use the South African legal term, goes too far in U.S. remedies, violating the rule against prior restraint—probably.*  There has been some case law lately suggesting that that rule might yield in exceptional circumstances, such as when a destitute or determined defendant cannot pay recompense but has the will and means, especially through readily accessible electronic media, to persist in the defamation.

(*Or probably not. I am kindly reminded that injunction is available now as a defamation remedy in two-thirds of U.S. states.  Professor Eugene Volokh's 2019 publication presently is the truly seminal work in the area; read more, especially the thorough appendices.  Injunctions are variable in kind, for example, preliminary versus post-trial, and the circumstances play into the constitutional analysis.  Regardless, a confluence of legal trends and a changing world seems likely to result in constitutional approval of the injunction remedy in appropriate circumstances. —CORRECTION added Jan. 13.)

Second, a compulsion of apology would unnecessarily abrogate a defendant's right not to speak.  And how genuine an apology might one expect, anyway?  Yet Milo ranked it as important that apology is on the table in South Africa.  For as he observed, a public apology, even if empty of sentiment, is often the symbolic gesture that a defamation plaintiff truly desires, even to the exclusion of financial compensation.

This empirical observation, well established in American legal culture, too, highlights a limitation of the First Amendment system.  Even friend-of-N.Y. Times v. Sullivan Anthony Lewis, in his seminal case biography, recognized criticism of the doctrine in that the Court's rigid constitutionalization of state defamation law foreclosed state experimentation with remedies that might prove more socially desirable and judicially efficient.

I'm not ready to abandon the First Amendment.  But we should accept the invitation of comparative law to be critical of American norms and willing to talk about change.  EFF awaits our RSVP.

The case is Economic Freedom Fighters v. Manuel (711/2019) [2020] ZASCA 172 (17 December 2020) (SAFLII).