Corporate Reputation Vindicated: High Court Grants Final Interdict Against Defamatory Social Media Campaign

Defamation consists of the wrongful and intentional publication of a defamatory statement concerning another. Once publication of a defamatory statement is established, wrongfulness and intention are presumed, and the onus shifts to the other party to rebut those elements by establishing a recognised defence. The test for whether a statement is defamatory is objective: would a reasonable reader, considering the words in their proper context, understand them as having the tendency to undermine the claimant's reputation?

In Barloworld South Africa (Pty) Ltd v Not In My Name International NPC and Others), a non-profit organisation and its directors were interdicted from publishing defamatory statements about a major South African corporate entity, Barloworld. In addition to the final interdict, Not in My Name International NPC ("NPC") and its directors were ordered to retract a targeted letter sent to a longstanding customer and to pay Barloworld's costs on the punitive attorney-and-client scale.

The dispute arose following the termination of contractual arrangements between Barloworld and Fisokuhle Multi Services CC. Allegations of racism and abuse were made against Barloworld by the sole member of Fisokuhle, Ms Felicia Buthelezi, on various social media platforms. Those allegations were investigated by Barloworld and subsequently became the subject of Equality Court proceedings, in which the presiding magistrate determined that the matter should not be referred to the Equality Court under section 20(3)(a) of the Promotion of Equality and Prevention of Unfair Discrimination Act.

During September and October 2023, Not In My Name International NPC and its directors published statements on X accusing Barloworld of racist and sexist conduct. In addition to the statements on social media, a letter was addressed to Tharisa Minerals, a longstanding customer of Barloworld, repeating those allegations and inviting scrutiny of its business relationship with Barloworld. An interim interdict was granted on 8 November 2023 restraining the respondents from publishing defamatory matter and from contacting Barloworld's customers regarding the dispute.

The NPC and its directors advanced several defences, including truth and public interest, reasonable publication, fair comment, and freedom of expression. However, each of the defences failed.

• They argued that similar allegations had been reported in a City Press article and that they were entitled to interrogate the conduct of a large corporate entity in the public interest.
• The downfall of the defences was due to the NPC's failure to place before the Court admissible evidence establishing the truth of their allegations of racism and sexism. Without proof of substantial truth, the publication could not be justified on the basis of public interest. The evidence showed that the NPC and its directors had formed a view of Barloworld's culpability and threatened protest action. They stated that no court order would deter them, which conduct is inconsistent with reasonable or investigative publication.
• The defence of fair comment also failed because the statements went beyond protected opinion and rested upon factual assertions not shown to be true. The Court emphasised that the right to freedom of expression does not extend to the unsubstantiated publication of defamatory allegations, particularly those directed at damaging existing commercial relationships.

The Court confirmed the interim interdict, permanently restraining the NPC and its directors from publishing defamatory statements concerning Barloworld. The Court held that a final interdict was appropriate because there was a clear right to protect (Barloworld's reputation), the injury was both actual and reasonably apprehended, and no adequate alternative remedy existed because damages would not prevent continued publication, and undertakings had proven ineffective.

Significantly, the Court also ordered the respondents to deliver an unconditional written retraction of the letter to Tharisa Minerals within seven days. A prohibition on future publication alone would not remedy the harm already caused by that targeted communication.

The NPC and its directors were ordered to pay costs on the punitive attorney-and-client scale. The Court held that the NPC and its directors had persisted in publishing serious allegations without evidence capable of justifying them. They ridiculed Barloworld's attempts to resolve the dispute through legal channels, and escalated the matter, which justified a punitive costs order.

This judgment reinforces the core principles of South African defamation law. Firstly, once a claimant proves that a defamatory statement was published, the defendant bears the burden of establishing a lawful defence. Secondly, public interest organisations and activists are not exempt from the laws of defamation merely because they claim to act in the public interest, they must still prove the truth of their allegations or demonstrate that they published reasonably after taking proper steps to verify the information. Thirdly, targeted communications to a claimant's customers or business partners may attract an order for mandatory retraction, in addition to an interdict.

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