A cursory reading of the Hinda v Amupanda judgement hints at a subtle but major mistake by the court, similar to that made by the apex court in South Africa in the case of Le Roux v Dey.
In the Le Roux case, a teacher sued three school pupils for defamation after one of them created a digitally manipulated picture to depict a teacher engaged in a sexual act with the school's principal; the other pupils distributed the picture.
Like the Le Roux case, the part of the ruling about the image Job Amupanda posted - referencing deputy minister Maureen Hinda - suggests that meaning in defamation matters involving fictional works, such as parody or satirical images, can be analysed for truth or falsity the same way one would a news article in The Namibian.
This is a subtle but sweeping doctrinal change to the law of defamation, extending it to speech, which, in the eyes of the right-thinking person, is obviously fictional and, therefore, devoid of any assertion as that term has hitherto been understood in the law of defamation.
I do not consider the court's finding that it was defamatory to assert Hinda was a vindictive person suing Amupanda because of unrequited affection.
Truth and falsity
Satire and parody pose a special issue for the law of defamation.
In a way, because they are based precisely on a counterfactual depiction, they are necessarily false.
Imagine a photoshopped image or cartoon in The Namibian pretending to show tatekulu Nujoma caning his son Utoni for telling a local journalist to "go to hell".
The image is obviously fictitious but to say it is a lie (or false) would be to suggest it was presented as an assertion.
This is a fundamental misunderstanding of what truth and falsity actually entail.
Parody or satire proceeds on an assertion (a factual statement or allegation), but it relies on the thinking person to discern from the context that the assertion is in fact make believe (or counterfactual).
Because satirical statements are counterfactual, properly understood, they are not statements of truth or falsity (as understood in defamation law, but also more generally).
Such statements, although propositional in nature, lack what language philosopher John R Searle calls "illocutionary force" because they present a factual assertion dressed up, in an obvious way, as an assertion.
They are, Searle argues, to be analysed as a form of pretending.
The law of defamation captures this understanding about communication.
It requires the plaintiff to allege (and the court to establish) the meaning of the assertion or allegation in question in the eyes of a right-thinking person.
Meaning and merit
Part of the 'meaning' analysis (which is not the same, but is related to the question about whether the statement is defamatory) is to consider whether a statement or image was conveyed as an objective statement; that is, a statement (a) capable of being true or false, and (b) conveyed with the intention that it is true (when it is false).
This analysis is almost never explicit, but apart from the Le Roux case (and now Hinda), all successful defamation cases in our law involved an assertion or allegation about the plaintiff.
I have found no case to show otherwise, suggesting the firm roots of this doctrine.
Without pretence or mimicry, parody dies. If Amupanda disclaimed "this is a stock meme off the internet", or instead used Ms Hinda's actual picture, what would have been the point exactly? (Forget whether his attempt at satire had any merit or was funny.)
Yet, because the average Facebook user can easily spot a meme, especially one idiot-proofed with "It LOOKS like deputy minister of finance", the right-thinking person would have known the picture is not Hinda.
After all, Hinda is a well-known public figure and the judge himself said she looked nothing like the person in the picture.
Meaning and reasoning
The court made quick work of the defence that the statement was satirical, focusing instead on the fact that it was a false image of Hinda.
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But because determining meaning (ultimately the court's task) is central to establishing presumption of defamation, the court failed to analyse carefully and precisely how online satirical images of this sort (which are rife) ought to be analysed for meaning in defamation suits.
It made nothing of the fact that the image was explicitly presented as a look-alike (i.e. a counterfactual) and not as an assertion or factual allegation about Hinda.
This line of reasoning spells trouble for freedom of expression, as satire and parody are ancient art forms central to political discourse and ridiculing authority.
Hinda may have been the wrong target, but it would be unfortunate to let the judgement go unchallenged in an atmosphere where the 'honourable' political class takes itself way too seriously and deserves a good ribbing every once in a while.
- * Metumo Shilongo is a professional overthinker who occasionally doubles as Idris Elba's doppelgänger. He was forced by the editor to submit a real portrait of himself to accompany this piece (instead of one of his favourite felines as he is, in fact, not a cat).
