Swaziland journalists to be fined by own newspaper if their reports lead to defamation damages

Journalists at the newspaper in Swaziland (eSwatini) in effect owned by the kingdom’s absolute monarch King Mwsati III are to be fined by the company if reports they write result in awards for defamation damages in the law courts.

A policy has been drawn up at the eSwatini Observer, one of only two daily newspapers in Swaziland.

Revealing the policy, the Inhlase Centre for Investigative Journalism reported a draft of the policy states that journalists will be charged ‘50 percent of the insurance excess for stories that lead to libel claims being brought up against the company’ to recover lost revenue. 

An earlier copy of the policy had 1 July 2020 as the start date but this was removed from the latest version pending a meeting between management and the media workers’ trade union.

Inhlase reported, ‘The policy says the aim is to implement discipline fairly and consistently throughout the company with regard to lost revenue due to employee negligence, defined as damage to company property, costing revenue by repeating or publishing advertisements incorrectly, and defamation claims.’

Newspapers in Swaziland have been under attack in the libel courts for some years. Inhlase listed a number of cases including one in 2014 when the Swazi supreme court ordered the Times of Swaziland (now the Times of Eswatini) to pay E550,000 (US$35,000) to former senate president Gelane Simelane-Zwane, who had sued the newspaper for questioning her paternity and claim to the chieftaincy of the ko-Ntshingila area.

South African-based gospel artist Sipho Makhabane sued the Observer after it published an opinion piece questioning his Christian values. In January 2017 the supreme court awarded him E300,000. 

The Observer was successfully sued by medical doctor-cum-businessman Futhi Dlamini over a story about a dispute relating to his father’s estate. Dlamini won damages of E200,000 when the supreme court dismissed the newspaper’s appeal in 2018.

The Observer’s former managing director, Rev Alpheous Nxumalo, sued the paper over a report relating to his HIV status and won E250,000 in the supreme court in June.

In September 2020, the high court ordered the Times to pay E350,000 to the deputy speaker of parliament, Phila Buthelezi, and E175 000 to assistant master of the court Ceb’sile Ngwenya for defaming them by intruding on their privacy. 

The Observer on Saturday is currently in court defending a E500,000 defamation suit brought by lawyer Simanga Mamba, the chair of the Teaching Service Commission, over an article about his billing of clients.

 

See also

Paper must pay record libel damages

https://swazimedia.blogspot.com/2014/12/paper-must-pay-record-libel-damages.html

PAPER MUST PAY RECORD LIBEL DAMAGES

Media freedom advocates have criticised Swaziland’s Supreme Court for awarding record libel damages against the kingdom’s only privately-owned daily newspaper in favour of the Senate President Gelane Simelane-Zwane.

Africa Echo Ltd, which runs the Times of Swaziland group, was ordered to pay Simelane-Zwane, who is better known in the kingdom as Gelane Zwane, E550,000 (US$50,000) after it published stories stating that she had lied about her birth name.

The Swazi News newspaper had reported in 2009 that Zwane was not born a Simelane and this would make her ineligible for her then office as acting chief of KoNtshingila. At the time she was engaged in a battle to retain the chieftaincy which depended on her being a Simelane.

The Media Institute of Southern Africa (MISA) Swaziland chapter said in a statement, ‘This recent ruling has sent further chills through Swaziland's already heavily censored and fearful media.’

It added, ‘The three judges who handed down the ruling - Nigerian-born Esta Ota; American Bar Association member Stanley Moore; and Lesotho-born chief justice Michael Ramodibedi - emphasised the high-status of Simelane-Zwane in Swazi politics and society, suggesting the more powerful one is the more they deserve from a defamation case.’

MISA added, ‘In silencing the media the judiciary is ultimately harming the prospects of the nation. Without open and unfettered debate, progress will only benefit the fortunate few at the top.

‘In suppressing sincerely held opinions or inconvenient truths in the name of respect, the judiciary is displaying remarkable disrespect for the principles of natural justice and tolerance. If freedom of speech is continually trampled on, the image of Swaziland in the eyes of the world will continue to decline. It is not the so-called “disrespectful” or “offensive” speech that causes the problems; it is the criminalizing and silencing of that speech, of that open debate, which causes the problems.

‘In handing out disproportionate rulings in defamation cases in the name of protecting the powerful, the judiciary is harming Swaziland’s constitution, which should be protecting free speech and media freedom.’

Reporters Without Borders called the award of damages ‘exorbitant’ and added it was ‘tantamount to a death sentence’ for the Times of Swaziland.

Cléa Kahn-Sriber, head of the Reporters Without Borders Africa desk, said in a statement,  ‘This damages award, the largest ever made against a Swazi publication in a libel case, is out of all proportion to the harm the newspaper is alleged to have caused the plaintiff, said. In the light of the financial situation of Swaziland’s media, one can only regard this exorbitant award as a government attempt to throttle the country’s only independent daily. We call for this ruling to be overturned as its sole aim is to gag the media.’

The three Supreme Court judges giving their judgement said the newspaper had been reckless in not checking its facts before publishing the stories.

See also

POLICE THREAT TO ANTI-CHIEF PROTEST

http://swazimedia.blogspot.com/2013/10/police-threat-to-anti-chief-protest.html

 

SENATE PRESIDENT CENSORSHIP THREAT

http://swazimedia.blogspot.com/2013/01/senate-president-censorship-threat.html

NEWSPAPER COMMENT MUST BE ETHICAL

There have been posts on Facebook recently about the standards of newspaper journalism in Swaziland and whether comment writers need to abide by ethical codes.

Some people are saying writers of ‘my opinion’ pieces aren’t ‘journalists’, so the ethical rules that apply to full-time employees of newspapers don’t apply to them. This isn’t the case.

The word ‘journalist’ covers a multitude of newspaper tasks and not just news reporting. So, feature writers, opinion writers, photographers, the people who write the headlines, the editors, and so on are all ‘journalists’.  The term applies to people whether they work full-time for a media house or only contribute the occasional piece. It doesn’t matter if comment writers have day-jobs somewhere else: when they write for the newspapers they are ‘journalists’ and they are expected to stick to the rules like everyone else.

Some Facebook posters also think that comment writers are allowed to say anything they want and it doesn’t necessarily have to be true, because it’s the writer’s own ‘opinion’.

That isn’t true. Comment writers have to abide by the same laws and ethical codes as anyone else. Take the defamation (libel) law, for example, that protects people from false attacks on their character. Suppose a comment writer says in his column that a person he names was sacked from his job, even though this isn’t true. When he is accused of libel it’s no use him telling the court, ‘It was an honestly-held opinion’. It was not true (even if the writer thought it was, but did not check his facts) and he and the newspaper that published the article would have to pay damages to the person libelled.

Libel laws differ from country to country, and many of them allow that writers should be allowed to have opinions, but there are limits. If a writer were to be accused of libel, the main defence he might have would be that what was written was ‘fair comment’ or ‘honestly believed’. But, for this defence to succeed, the writer must show that the comment was made without malice or disregard for the truth.

The Swaziland National Association of Journalists (SNAJ) code of ethical conduct says something on this.  Article 12 on separating comment from facts states, ‘While free to take positions on any issue, journalists shall draw a clear line between comment, conjecture and fact.’

SNAJ also has this to say about facts. ‘The duty of every journalist is to write and report, adhere to and faithfully defend the truth. A journalist should make adequate inquiries, do cross-checking of facts in order to provide the public with unbiased, accurate, balanced and comprehensive information.’

So, opinion writers must beware – they have no special privileges and must stick to the same rules as all other journalists.

DOG EATS DOG IN SWAZILAND

Paul Loffler, publisher of the Times of Swaziland, is suing a tiny newspaper in the kingdom for defamation.

Loffler says the Swazi Mirror published an article that said he pays himself E1 million a month as salary whilst his employees earn peanuts.

Loffler’s lawyers now say, ‘If one juxtaposes our client’s alleged monthly remuneration of E1 million (which is not true) with the employees’ salaries, in the context, it implied our client is greedy, selfish and has no regard for the employees’ welfare.’

Loffler wants E400 000 (75 000 US dollars) in damages.

E400,000. Loffler greedy? You decide.

CENSORSHIP – ADVERTS AND LIBEL

I wrote last week about the research I had undertaken on censorship in the Swazi media.

My conclusion that journalists felt that King Mswati III was the biggest cause of imposed and self-censorship in Swaziland didn’t come as much of a surprise to media watchers.

But, I want to make clear that although the monarchy is the main concern among media people in Swaziland it is not the only cause.

My report, commissioned by the Media Institute of Southern Africa (MISA) Swaziland chapter, also identified advertisers and the threat of libel action as significant worries.

Below is an extract from the report called The Existence of Censorship in Newsrooms. If you want a copy of the full report please email me at swazimedia@yahoo.com


Advertisers and financial interests of organisations

The threat of losing advertising is real, this is especially so as the economy of Swaziland is declining. The privately owned media is dependent on advertising to survive, and since a small number of organisations spend so much the media houses give serious consideration every time there is a complaint from an advertiser.

Some advertisers are so important to the newspapers that a special relationship exists between the advertiser and the advertising department. The advertising department knows that some advertisers will never say ‘no’ when approached to advertise. For example, if a newspaper is running a special themed advertising supplement, it might approach a regular advertiser to support it. If the advertiser has already spent the annual advertising budget, an advertisement would still be placed and the advertisement paid for at a later date, when funds are available to the advertiser.

A number of companies and organisations were specifically cited as organisations that regularly tried to censor the content of newspapers. They were Swazi Bank; the cellphone company, MTN (‘a definite no-go area’ and ‘you can’t write about blackouts in the service’); the Swaziland Electricity Company and Swaziland Posts and Telecommunications (SPTC).

All the foregoing are major companies or parastatals in Swaziland. But smaller companies are also given special treatment. One such company that was mentioned more than once by respondents was the Why Not (a recreation and entertainment venue). In the case of the Why Not, respondents said they did not even feel able to publish a poor review of an act that appeared at the venue, for fear of losing advertising.

Although media houses will keep stories about advertisers out of the media there is a limit to what they will not report. For example, one respondent said they would publish a story if a chief officer of an advertiser were accused of rape.

Newspapers do not fear the withdrawal of advertising by government, although, according to the African Media Barometer, published by MISA, this has happened in the past. It is felt that government has little choice but to use the newspapers in order to get information out to the general public (although state-controlled radio, SBIS is also available for this). One respondent said that in the past when the government did withdraw advertising it was done by one small part of government and the ban lasted about one week.

There was a minority view that advertisers did not cause problems for media houses because they understood that newspapers had a duty to publish. Advertisers were satisfied if the media house gave the advertiser a platform to give its side of the story.

Libel

Many respondents reported that hardly a day went by without somebody threatening to sue them in order to ‘scare them off’. A letter from a lawyer often accompanied these threats. There was a general feeling that some people who claimed that they had been libelled by the media were ‘trying it on’ to get the media house to agree on an apology and costs before the case got to court.

The great time delay in getting cases to court could intimidate media houses. One respondent said a case could take up to two years before it went to court. Another said that lawyers, acting like ‘ambulance chasers’, tried to keep a case going as long as they could. This guaranteed the lawyer an income, when lawyers had very few other opportunities to earn.

Media houses sometimes settled cases, even those where they believed they had not committed a libel, for fear of the huge costs involved. Libel insurance to protect media houses was becoming prohibitively expensive in a climate where claims for libel could be as high as E3 million.

This fear of the high cost if a case was lost has led to some stories being dropped or angles in stories being toned down.

Media houses often settled out of court to avoid the protracted hassle and possible costs of pursuing a case to court. One respondent said settling out of court was a dangerous move for media houses. ‘Once you settle, you open the floodgates for everybody else.’

Another respondent said, ‘Settling for fear of going to court has reduced the confidence of journalists and lowers the standards of journalism’. This led newspapers to only go for soft targets (people who could not sue) and to leave larger, more important, targets alone.

Sources

The media protect their own sources by not publishing harmful stories about them, but this protection is not total. Some respondents revealed that they would not publish the story in their own newspaper, but would pass it on to another newspaper in the same media house, for them to follow up.

Some respondents admitted to censoring stories about regular sources in order to ensure a future flow of stories from that source.

When a regular source wants to keep something out of the media, a certain amount of negotiation takes place. There were a number of examples given where a source – often an official spokesperson for an organisation – offered the media house a ‘juicier’ story in exchange for dropping a story that would reflect badly on the organisation that the journalist was working on.

Sources often get their way, and many respondents revealed that they were given ‘better’ stories in exchange.

Taboos and cultural traditions

Cultural traditions are said to be very important in Swaziland and there exists a duality in the legal system between constitutional law and cultural and traditional law.

Despite the apparent importance of culture, most respondents said that they did not allow traditional leaders to interfere with the media’s work.

Some respondents said that there are no real cultural traditions in Swaziland. ‘We don’t respect that cultural leaders are sincere,’ one respondent said.

Other comments included, ‘To Hell with culture – nobody has authority to challenge us.’ ‘Nobody’s practising culture in our country any more.’ ‘Women in the villages are only doing it for survival, they don’t really give a damn.’ ‘I’m here to break cultural taboos.’

The only area in which culture was respected by the media, concerned the King. There are a number of things that culture dictates cannot be reported about annual ceremonies concerning the King (e.g. the Reed Dance and Incwala) and the media (reluctantly, according to respondents) censored themselves. It was clear from respondents that there were many stories from the Reed Dance and Incwala that were known to the media, that they would like to publish, but did not, for fear of the consequences from the King.

See also
CENSORSHIP AND THE SWAZI MEDIA

PRINCE SUES ‘TIMES OF SWAZILAND’

A brother of Swazi King Mswati III is suing the Times of Swaziland for alleged defamation.

Prince Guduza, who is also Speaker of the House of Assembly, wants the newspaper to pay him E2 million (about 285,000 US Dollars) for articles it published about his involvement with a company that allegedly illegally imported cigarettes worth E17 million into Swaziland.

The move is not entirely unexpected since in Swaziland people in powerful positions, including Parliamentarians, often sue the independent media in order to try to intimidate them into silence. Often, after the initial threat, no court case actually takes place. However, the threat of action is often enough to quieten troublesome journalists.

The Nation magazine, an independent monthly comment journal, is currently in court battling a lawsuit by a government official who is suing the magazine for alleged defamation. The official had recently won damages after the Nation failed to appear in court to defend the case. But the Nation later won an order for stay of execution and the case is yet to be argued in court.

In 2007, the Times had one lawsuit from the Minister of Education dismissed by the High Court on a technicality only to be sued by the Minister of Health and Social Welfare over an article about HIV AIDS.

In the same year, the Swazi Observer was sued by an MP over a report of an alleged assault.

What is common to all the defamation cases is the unrealistically high damages that are claimed.

In a media release on Tuesday (18 March 2008) the Media Institute of Southern Africa (MISA) states that lawyers for Prince Guduza claim that publication of articles in the Times ‘set the tone for further articles and commentaries in the newspaper in which our client was accused of being a liar, unfit to be Speaker of Parliament, abusing his position as Speaker, abuse of power in general and being corrupt and engaging in a generally corrupt relationship with the police.’

For further information on a previous lawsuit against the Times click here

For further information on the Nation case, click here

See also
ONE LAW FOR THE SWAZI PRINCE