112 “resis AND ANOTHER TOUGH UNE MEDIAGETY) LTO ‘oe @) 3A Ne wo A may be requited to abate the noise nuisance occasioned by theit tise of crf 1883, Walmer, Port Blzabeth, situated at 3, 3rd ‘Avenue, Walmes, Port Elizabeth (hereafter refered to 93 ctf 1 (ev) applicable to ert 1883 does ind second resporRlents to cause a noise (© diecting the first applicant to pay the costs of the second, third, fourth and fifth applicants and the fourth respondent occasioned bby the application for a postponement on 30 January 2003; (P directing the fisst and second respondents, jointly and severally, c the one paying, the other to be absolved, to pay dhe costs of the fourth and ff applicants, occasioned by its their application to intervene; first and second respondents, joindy and severally, the one paying, the other to be absolved, to pay the costs of the D ‘main application. TSICHLAS AND ANOTHER v TOUCH LINE MEDIA g (PTYPLTD WITWATERSRAND LOCAL DIVISION suwvas 2003 March 14; June 26 (Case No 2783/08 Publisation—Elecnynie media—Imemee website—Place of ng place at place where tcebsit tion of babicaion ‘of defamatory mtaral wt competent—Appiaion ‘TSICHLAS AND ANOTHER TOUCH UME MEDIA TY) 13, ‘ne 1) Se 32 mo Inentica—Final incerdca—Imentice nswaining publication of existing and A, iaterial on Imemiet cwebite—Evidence tot ‘Publication of exis ‘damages also boing satisfactory altri place of busines, nye ® ee of jurisdiction — cane was the club secretary ofthe second applicant football club spine ‘chat forum pages pst id her application, she jal place of business inthe Repu Was sulciet to provide the Coutt ascmbodied in 16 of the Gonsticuuion of the Reputilc of South Aes Act 108 of 1996 would be grossly curtailed irsuch am onder were mace Since J“TOVHKAS AND ANOTHER v TOUGH LINE MEDIA TY) LTD mo Snr. ‘There wae in addition no. ceason to. believe that defamatory sfatements would necessarily continue to be published or that ifthey were, Tnjueys oF () ombbe ober (he 1320) Appicion aed dictum at 2048 applied ‘SA 831 (W}: discussed and sive Workers 1940 CPD Application 0 rest toty material on an J for judgment. ' “TSIOMLAS AND ANOTHER v TOUCH LN MEDIA(PTY) LTD JJ Romecte SC F Neradigate SC Cur ade vit, for the applicants. Posiea Gune 26). Kuny AJ: On 10 February this year the two applicants fa urgent application agaist te rein 5rd of governors of the Premier Soccer League in she Was elected as the first woman serving on the Which were allegedly made of and concerning her personally would ‘constitute not only a reflection on hes, but also on the club and the team itself ‘From the foregoing it is clear that the founding affidavit establishes that a trading company cs "for defamation. In the present app and is published by the fgment, to go into the © and Bow access grned 0 Internet which has become + fxponentl rate Teis used choughout ihe weld eda by any sloes enti ate Te out the word ody by many lions of people who have acess o computer tesnology andi uncon tthe ino the me. forum is, how the publ the respondent's website address and how it and content of the ‘cls forum is assisted by the attachment to the founding Pages emanating from the discussion forum, I refe118 "TSHAS AND ANOTHER v TOUCH LNE MEDIA PTY TD rane as pe 2) 8A U2 mo 1 write (call) in, by way of electronic communica ig debate, discussion, comment or whatever else the zmay wish to contribute to the discussion forum, Vari rime t0 time, put up for debate and discussion, ke discussion, often animated, vigorous, "et, a3 one can see from the pages from the chat forum annex papers C "Te scems that football fans in general and in South Africa in particular are very vociferous in the views which they express and are sometimes very critical of the managerient, administration, oxganisation, selection of players, and the performance of players on the field. Comments and ‘opinions are often strongly expressed, sometimes in the most lurid and D insulting terms, as can be seen from the statements which have been complained about by the applicant and which are vet out in anneasre SE to the notice of application. This annexure relers to 20 selected statements which form the basis of the applicant's complaint. 1 will retura to these statements in due cours. E The point is that the ‘kick-off website, as opposed to the Kich-Of printed magazine, attracts many thousands of what are called ‘postings’ to its web pages; postings being the messages, statements, questions, answers .. etc, which are contributed by various users and which, having ‘on the web pages of the forum, may remain there for an indefinite period of time or until removed. F "This application arises from dhe fact that, over a period of time ‘commencing from 8 November 2002 until 3 February 2003, a number ‘of statements had appeared on or had been contributed by various users ‘of the website (not inserted or ‘posted’ by respondent itsel) concerning, the applicant, Mrs Tsichlas. ication is based upon and relates G solely to those 20 selected statemn hase this because, side by side ‘with this application, an action claiming damages for alleged defamation was launched in the middle of December 2002 by Mrs ‘same applicants asin this H defendant, ‘Line Media (Pry) Led as the second defendant and National News Distributors, the firm conducting the business of distri- from the publication in the respondent's print magazine website magazine) of a lever from a contributor and the was published in the magazine under dhe management are destroying the club’. Mr McGui J answer to the letters which were addressed by the applicants’ Tic A no NOTH» LOUOALE MED ry XD wens oa yacneewen ms tome 0 the second repent de ation (ponden in this A setion to quantify and cannot fully compen- 2) harm done to their i, applicant says, can sn why the applicant saw fic to annex those ‘papers to her affidavit was to indicate that che respondent had treated her attorneys’ complaints and demands so dismissively that no purpose would have been served, ia the present mates, to have requested the D sespondent, prior to launching this application, to withdraw the various ‘offensive’ statements from the website. deed, common cause that, prior to launching this application, did not call upon the respondent to withdraw the statements continued to appear and some of which still remsio, on the ¢ website chat forum pages jurisdiction, efore proceeding to deal with the substance of this application, 1 showld dean the firs instance, with de question of usedction, The ‘respondent has contended that this Court has no jurisdiction to hear this F application in view ofthe fact tha ie respondent snot egtered within the jurisdiction of this Coure and thatthe service provides esse resident in Cape Town Iis,acordingy, contended thatthe Cape Town Court and mot this Gouct would have juisleion and that tere fe no basis upon which this Court can exercise jurisdiction, G Section 19 of the Supreme Court Act 59 ef £959, as amended, provides that a Court has jurisdiction overall persone residing or beng cautes arising and allofencs table witha, its Junsdicton of tis Cour, even tough that might not be i principal place of business in the Republic as whole. Im iy view thin “prenee” B suit to provide this Court with hurisdiction this mater docs not, however. te solely on. tis pears 0 have fended jarcton in fis Court leged that the applicants the respondent’s website in Sandton in January of this ing, came upon various statements in the discussion which he drew to the attention of the applicant, Until J year and, i forum web pages,‘EICHLAS AHO ANOTHER y TOUCH UNE MEDIA (TY LTO ‘TSIOHLAS AND ANOTHER v TOUCH UME MEDIA PTY) LTD 120 tone (A 1 rom as ‘at @ 8A He ‘Tam of the view chat the statements were published of and conceming .g the applicant within the area of jurisdiction ofthis Court. Once they had ‘The leamed author goes on 10 point been accessed by, and thereby published to, the attorney, there was, in publications of the same defamatory matter. wublication’ a8 a requisite clement of defamation. detract from, but rat this regard 10 The Late of Defamation in South Africa by 0 67, where the learned author says, under the beading “What respondent's presen rslaton. ict of making known a defamatory statement, or the act of at publication, in ‘ook place within its jurisdiction. development of this form of electronic and almost instancaneous come ‘munication and dissemination of information on a global scale. Counsel F ‘have raised the pertinent and vexed question as to whether publication of ‘material on the Internet and, more specifically, in the so-called discue- sion or chat forum, is to be likened to and dealt with on the same basis ‘conferring jidicion on this Court to heat this 4 the print media andor she broadcast or television media or whether matter. pthesby 8 enesiction new or different or special Principles and considerations should GT do not propose with the various complications which may matter is indeed complex and the law, of to put aie form Ui nding In elec oy concawon would eth, accurately he extension of the lamin relation to unis form of ‘whenever anybody, anywhere in the world, accesses this website and nication wil, no doubt be developed and adcpted a8 move cases begin {eads and understands the words which are complained of in this mates, to arise throughout the worl. Various articles have been writen, bat here and overseas, andthe courts in other juisdictions have alteady bes) confronted and have had ‘with problems such as, inter alia, H jurisdiction, publican, choice of law. There i als the question of ews {eouraphic boundarie would not apply and that distances are ieelevant, legislation, which may, for ne to be enacted to deal with, im “his conclusion are enormous. ‘freedom af expression on the I eh i aware ofthis problem, not specifically in relation ro the Interne and the lineation of erally in the age of mess communication, ALBO-I he ‘matter on the Internet. the protection of information on in relation to the publication of122 {1IOHLAS AND ANOTHER ¥ TOUCH UME MEDIA O1Y) LID RUN AS ‘004 SA tte wo A (138 L Bd 2¢ 874) relating to the validity of cercain legislation regarding the publicadon on the Internet of pornographic martes and which legislation was held by the United States Supreme Court 0 be uncon- sricutional {In an article titled “Defamation on the Internet and other Computer ip Networks’ by Sanet Nel, published in 1997 1 GILSA, the author focuses particularly on the question of when and where publication of defama- n the Titernet occurs and who may be liable in respect of selevant to the present application, but I cake the liberty of refztring 10 the first and portion of the second paragraph of this article in order to indicate the sort of problems that can and are likely to arse in the future ‘Having dealt ia the article with the question of the proliferation of information and problems arising out of questions of confidentiality and protection on the basis of copyright, dhe author concludes with the following: (at 21) ay well become necessary, in the near future, f ig its mind to bear on the pacticular and peculiar J problems which may arise out of the Intemet and to deal legislatively TSIGHLAS NO ANOTHER TOUCH UNE MEDIA,PTH TO 123, romevas 2a (A 12 wb ich pr m protection of svete ‘service providers’ who are regarded as conduits rather than as principals in the dissemination of information. a ‘throw-away’ defence, suggests in its ‘be entitled to rely upon the provisions of this Act. At p 218 para 17 the respondent says the following: ‘Respondent i 2 wholly owned subsidiary of Media 24 Lad who in rum is ‘member ofthe On-line Publishers Association, a representative body refered to in $71 of the Electronic Communications and Transactions Act 23 8 ce It seems thar the respondent does not have much confidence in this, possible defence, because nowhere else in is papers do I find mention ‘made of this, and understandably so. The whole basis on which its ‘website operates seems to be that of a principal purveyor of information, Itis clearly not nor does it i taneous electronic communi- ‘cation and the consequent dissemination, globally, of information, data, literature, news, articles, pictures, music... ete has proliferated 50 rapidly and exponentially that both statutory and common law have scarcely had time to catch up or come to grips with and assess how t0 deal with the myriad problems which may arise and which are likely to S ‘Against this background and in the now being called upon to make a defini reguding the administration, manage toring and conteol of Internet websites which incorporate discussion or chat forums 2s part of H the facilities offered co the users of websites. I do not believe, having regard to the nature of this application and the form sought, ither necessary or appropriate for this C lupon such an enquiry or det {0 engage in an in-depth or legat implications of the exercise in the context of this application. Insofar as the applicants have indicated in the founding affidavit that they intend to institute an action J124 "TOILAS AND ANOTHER v TOUCH UNE MEDIA (PTV LAD niece as 2004 (2) SA M2 yap A for damages arising out of dhe allegedly defamatory ot injutious macter complained of in this 4 would clearly be more appr al Coure to deal with any such issues, should they arise at such ine now to deal with the essence of the application, The form of prayer 2 is for the granting of an interdict. In the ease of ks an onder that the respondent remove the ‘identified in annexure SI) appearing on the the said website within 24 hours from service of the order on the respondent. Prayer 4 secks 2 general order sespondent 1o remove defamatory anatier within one hour of publ © Whilst neither prover 3 nor 4 refer to ‘interdicts’, both py granted, would have the elfect of interdicting the’ respondent trom ‘complained of or any defamatory matter whetso- femoval thereof, itis implicit chat indeed, interdiets of a permanent and not metely an interim nature. Prayer 4 goes so far a8 to require respondent to monitor the website and 40 remove defamatory material posted thereon by participants in the forums on the website yet 2 deals specifically with identicy of persons who may be def any limitation fo time, context or circumstances. Twnll assume in favour of the applicant diat prayer 4 was intended to F refer only vo defamatory matetial concerning, the applicant since ¥ cannot ‘anagine that she could has ied to seek an order as wide as the one framed in prayer 4. Be that as ic may, these three prayers, seeking final interdictory ie is tte that the applicant, in para 63 of her founding alfidav G indicates that she intends to institute an action for damages against the respondent. She stresses, however, that damages will be difficult to quantify and cannot fully compensare for the insidious and irreparable hharm done to her fama, her dignias and het good not formulated to seek only interim relief, if granted theit eff if and not merely temporary inte thee reguemens dat Tapgoach this goin, The mai ht of ‘which deals with the specific ‘complained of, Proyers 2 and 4, although couched in general obviously intended to bolster prayer 3 s0 as to prevent any ial appearing on that forum at any time in the fueure, thereby jin one hour of such publi seems clear fiom the papers answering affidavie, take steps to remove that particularly from the techology to enable it to remove such material ‘The sofiwate in this regard apparently became available to the respondent from 7 February, bbut, even prior thereto, the respondent would, it seems, have been able C to remove matter by instructing its service provider to do so and the assuinpton is hatte service provider would have heen able to remove ‘The question is whether there is any basis in law forthe 9 refer in this tegard to several reported cases whic the grant or refusal of this type of relief, In the ease of Roberts v Ti ie E Lad and Otters 1919 WLD 26, in which the Court was faced ‘on motion to restrain the publication of libel, the heat reads as follows: odefence such eg uth and public benef could be eaablshed” ga scion on Ue plea ad 8, consent 10 the publicition, to s an interdict cam be granted so ‘Publication of mateer not before che Court, 6 red by Ward J at 30 as follows:126 ‘TICHLAS AND ANOTHER v TOUGH UNE MEDIA PTY) LTD KON Ar Tait @ oA 12 ww [A applicable roday. See also, in this regard, the cases of Cleghorn and Hams ihutive Workers 1940 CPD 409 at 415 and ‘WLD 167, particularly at 168-9. fzcrs (Pty) Lid Pikkewyn Ghscanw (Pty) Lad and (1) at 204B-E Van Dijdhorst J, akhough dealing ghwanomic under any name whatsoeyes ‘competition and ansinly ested upon th ‘know-how In view of che fact ‘occurred during Match and Apeil 1978 and has not feling -camipaign guded to May 1978 oud thaw 1s inom 1D “Ta respect of the passing-olf and infingement of 9s already on ¢ July 1978 by consent. aiven rise o the RB} 20 statements which form ‘present application. F Apart from chat material, che applicant has referred to nothing else to indicate that there has been any continuing and ongoing. campaign carried out by respondent to defame and vilify her in its website discussion forum or elsewhere. is common cause that respondent is not the author of the material is surprising that the jatements on the website untit they position, bots in 1 ‘world in South Africa and p J expect that, ifthings are not gol TSICHLAS AND ANOTHER TOUGH LINE MEDIA PT LTD ter any as 2008 @) 34H wa fo attack, criticism and possibly even the kind of meaningless abuse A, \which some of the seatements seem to amount to. require this Court to prevent in advance defamatory or derogatory statements from being made on a website discussion forum ot to order theic removal once they have already appeared. The Constitution of the Republic of South Africa 108 of 1996 guarantees freedom of. Section 16 of chap 1, headed ‘Freedom of Expression’, provi “> Breryone has the right of feedom of expression, which inches provides that ‘every- ignity eespected and to freedom of expression. between these rights, which may sometimes dis Ld at Ons © Bau 1998 (4) $A 215)-1216E Hefer JA (dealing with the the128 {1SHLAS AND ANOTHER V TOUCH UE MEDIA PTH) ETO TOICILAS #10 ANOTHER TOUCH UNE MEDIA PTY LD 120 vy as ‘oot 2) SA 12 wo ‘oie ea i veo A “Tndhe interpretation of any law and the application and development ofthe very featon that the Canstiution recognises the special A ‘our shal have du regard 4 the sp role of the media in murtuing and strengthening our es the applicant seeks in prayers 2 and 4 to impose ‘constraints on the respondent’s freedom £0 ‘on igs website discussion forum. Tam of the view g ied in 5 16 of the Cons id be grossly ac common law for the Court to do s0, ps not yet Known, presented or published and cvaluate, jo advance, whether such matrist would not only be defamar — tory but may be met by 2 good defence, ve caused her injury, ‘such damages a6 may, however, ately assessed by code ore he the eeence concerning © The aready-publied defamatory mater doce na, in my view, establish smoctacy dedicared 10 mpertat rol ofthe {must im my view be recognised. T re depends upon robust critiesin of d J. ¥1096 Gy SA 850 (EG) at BBG (1996 (5) BCLR GB. ‘let of trying to “lose the stable door after the forse has bolted. There. Jsot wp SA 12 to call upon the regard, the respondent has ‘everything that appears © that appears on its the launching of this cout, having now acquiced the appropriate software bruary, which enables it ro remove material from its W: tinguishable from those én cast, The substantial publication of the je was about to take place on the day and date on which the ive response (without prejudice to its that she would suffer continuing harm and chat hee reputation would continue to be adversely affected by the ongoing publication of these Grom her say-so, ‘me that, by = 2 appeating published debate and discussion which had been taking pl the particular time. Any further harm which the applicant may suffer in. H1 such iatter that can best be dealt with by the ‘J that the publication thar was sought to be restrained was before the11 Court considers adequate and appro} hhaving regard ‘caused to her good name and reputat ‘ny fiiunia which she may have suffered. These damages doubt, encompase any damages which may be proved red oF unnecessarily prolonged pul ‘The onder die reasons given, Tam of che view that there is no basis in law ‘or on the facts for che applica to obtain the relief sought in 1¢ applicants 6 GW) whether the respondent has a good defence to the publication of any such defamatory material. In this the trial Court nay have to consider the - bilicy and the liability of the owner/proprietor of an Iimernet website containing @ discussion forum of this H natures of damages, if any, sulfered by each of the ion oF yh party costs, Such costs are tO include the costs of two counsel. zone SA 193 neo Applicants? Atorneys: Hofneys & Gilvata fue, Sandvon. Respondemt’s Attorneys: Abrahams & Gross fue. Sv MANZI or NATAL PROVINCIAL DIVISION PG CONBAIICK J, NLES.CUNER J aud KRUGER J 2008 August 15, 28 (Case No AR728/03 D Crimival procedse—Tial —The accused — Absence of from Gourt—Crine- inal Procedure ct St of 1977, 35 158(1) and 322(1) —By agreoment,