Court bid to gag Noseweek fails

Cape Town - The Western Cape High Court dismissed an urgent application on Tuesday to compel Noseweek magazine to remove from its internet website an allegedly defamatory article.

The article, titled "Fashion Victim", involves businesswoman Inge Peacock - creator and owner of the fashion label Lulu Tan Tan.

Peacock claimed before Judge Andre le Grange that the article was "extremely degrading and damaging" to her good name and reputation.

Le Grange said the issue involved two clashing constitutional rights --the right to freedom of expression and the right to dignity - that had to be balanced against each other.

He said South African courts had consistently ruled that freedom of speech was a right not to be overridden lightly.

Though he had refused the interdict sought by Peacock, she nevertheless had a course of action which might result in damages for defamation being awarded against Noseweek.

He said it was well accepted that cases involving attempts to restrain publication had to be approached with caution.

In South Africa's new constitutional democracy, freedom of expression and of the press were "potent and absolutely necessary tools" in the maintenance of a democratic society.

The judge said the media had a vital role and function to make available to the community information and criticism about every aspect of public, political, social, and economic activity, thus contributing to the formation of public opinion.

The approach adopted by Noseweek investigative journalist Mark Thomas, "news editor and author of the offending article", could not be regarded as reckless or negligent.

Le Grange said the steps taken by Thomas in gathering information for the article could not be regarded as inappropriate, or inconsistent with the demands of freedom of expression as contemplated in the Constitution.

Peacock had a remedy in damages, by means of which she could vindicate her right to her good reputation, if it were later found to have been unlawfully breached.

Le Grange added: "News, on the other hand, by its very nature is a commodity with a diminishing value. That which is relevant and newsworthy today, will be less so in months to come."

The common good would best be served by the free flow of information.

The judge said he was not persuaded to unduly limit or interfere with one of the foundational values of the Constitution - the freedom of the Press.

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