Saturday, October 23, 2021

Litigants spar over legal meaning of ‘publishing’

From a print media perspective, “publishing” is a straightforward enough idea and activity: preparing and issuing editorial content material for public distribution by selling it. From a legal perspective, however, there may be no such straight lines.

What if you write a letter to someone who then shares the letter with some other people? What if someone (or people mentioned in the letter) feels that s/he has been defamed in that letter? Is there legal basis upon which the aggrieved can sue for defamation? Those are questions that the Lobatse High Court will answer if the defamation lawsuit between the owner of Molapo Crossing shopping mall in Gaborone and directors of Pick n Pay Botswana ever sees the light of day.

On one side is Luc Vandecasteele and Sphinx Associates, the company through which the former manages Molapo Crossing shopping mall in Gaborone. On the other side are the directors of Pick n Pay Botswana and their company, Horn of Africa. Vandecasteele wrote an email to the franchisor and brand owner, Christopher Reed, who is based in Johannesburg, South Africa. In that letter, he alleges that the Molapo Pick n Pay store contravened the public health and building control codes as well as basic rules of commerce. Feeling aggrieved (“I was humiliated and degraded by the words contained in the email correspondence”) each one of the Pick n Pay directors is suing Vandecasteele for damages of P50 000.

In his defence, Vandecasteele says that his email was not published, that the email was sent to Reed within the context of a privileged business relationship and that the email was written with the sole intention of enforcing compliance with a lease agreement signed between Sphinx Associates and Horn of Africa after numerous requests to remedy breaches were ignored.

“Alternatively, and without conceding that there was publication of the statements, such publication, if any, would be in the public interest,” he says in his affidavit.  

In response, the other side contests that the addressing, transmitting and sending of the email constituted publication: “Your email was copied to various persons and therefore published within the meaning of law.”


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