IN THE HIGH COURT OF SOUTH AFRICA 

WESTERN CAPE HIGH COURT, CAPE TOWN

									Reportable

									Case No.: 11961/2006

In the matter between:

and

JUDGMENT: 09 November 2009

DAVIS J:

Introduction

[1] Acting in her capacity as guardian of her minor child, T, plaintiff launched an application against defendants for a claim of damages in the amount of R500 000, allegedly arising out of the publication of a photograph of T in a magazine in respect of which first defendant is the owner and publisher and second defendant is the editor. Further, it is contended that defendants caused the offending photograph to be displayed on national television.

[2] The cause of action has been based, firstly, on defamation and further on an invasion of the privacy of T.

The Factual Matrix

[3] T was twelve years old at the time that the photograph was taken and the picture published in the Zigzag magazine. Zigzag magazine is a surfing magazine which has been published in South Africa for the past thirty-three years. According to second defendant, the editor of Zigzag magazine, it has a readership of between thirty thousand to forty thousand.

[4] The particular photograph, which has given rise to the present dispute, was published in the April 2006 edition of the magazine, without plaintiff's authority or consent. The photograph was also flighted on national television in the program "Super Sport", a copy of which advertisement was provided to the Court.

[5] The photograph, as it was published, was stamped bearing the word "filth" as well as a description at the foot of the photograph "all-natural Eastern Cape honey". The following statement appeared on the cover of the magazine: "100% pure filth photos inside".

[6] The photograph appears in a section of the magazine entitled "dishing up the photo feast". In smaller print, the following caption purports to describe the photograph further: "only the freshest, ripest images go into our photo features. Handpicked with no artificial flavourants or additives we guarantee you 100% pure serving filth or your money back".

[7] Initially, a dispute arose as to whether these photographs was that of T. This issue was no longer in dispute by the time the case was heard.

The Evidence
[9] Plaintiff called two witnesses, namely T and plaintiff, who is her mother. T testified that she was on holiday at Cape St Francis in January 2006 with her family and some friends. While on holiday, she was informed that there would be a photographer on the beach who had taken photographs of surfers. She assumed that it was on this day that her photograph was also taken. She learnt of the photograph after her sister called her a few months later, in April 2006, and told her that she had appeared in the magazine. Initially she thought "it was great to be in the magazine". However, as time went by, she received a number of MXit messages, which is a cellular phone message system similar to 'facebook'. It was clear from these messages that she had been identified as the girl in the magazine. She later heard that she was referred to "as a slut" and "PE's little porno star", manifestly disparaging remarks which upset her greatly. She was also distressed when she saw the picture of herself at a craft store at the boardwalk casino complex where it had been pasted on the wall behind the owner's till. Further, she heard that her photograph had been hanging on the walls of Grey High School, a boy's school in Port Elizabeth.

[10] She was examined on her knowledge of the expression "pure filth" and as to whether she understood these words to mean "something of great quality" or words which bore a positive connotation within the surfing context. She testified that neither her friends no her family had understood these words in this context. To the contrary, she testified that the words "pure filth" had "destroyed her". She testified further that similar insults continued some three and a half years later.

[11] Mrs Wells testified that, when she saw the photograph, she was immediately upset. According to her, the photograph "robbed T of her innocence".

[12] Her distress was compounded when she went to East London to play hockey. One of the male hockey players confirmed that he had seen the photograph and indeed paged back to look at it a few times. She was disgusted that her daughter was now being depicted as "a pin-up girl". She was also informed by her friend that T had become the focus of attention at Collegiat College and at a boys school, Grey High School. As Port Elizabeth was a small community, with an even smaller surfing community, T was well known and easily recognised by her friends as the girl in the photograph. She accepted, under cross-examination, that T may have been flattered by the photograph but said that this was a typical reaction of a twelve year old child. She also testified that she never heard nor understood the words "pure filth" to connote something positive. Neither her son nor her ex-husband, who were surfers, understood these words in this way. Mrs Wells testified that when she approached her attorney she would have been happy if an apology had been forthcoming from the defendants.   However, she never received such an apology.

[13] The defendant called one witness, Mr Bendix, the editor of the magazine. He testified that the photograph of T had been acquired through a freelance photographer Al Nichols. These photographs had not been commissioned by the magazine. The picture of T was considered to be "a girl shot". He never thought that she was twelve years old. Under cross examination as to whether he would have used the photograph, had he known that it was that of a twelve year old child, he said "it was always easier to look at it in hindsight.   It is more than likely that I would not have used it".

[14] Mr Bendix testified that the words "pure filth" had a specific meaning within the surfing community; that is of something of good quality and was a phrase which was complementary, either of a wave or of a young woman. In support thereof, he referred to a number of definitions in dictionaries which appeared to have been taken from the internet and which defined the word 'filth' in this positive fashion.

[15]   On the basis of the evidence, the key issues which were raised in argument were the following.
1.	Whether T was identifiable from the photograph.
2.	The meaning of the word "filth".
3.	

Recognition

[16] Mr Fagan, who appeared on behalf of defendants, submitted that no part of T's face was visible on the photograph. The photograph was taken from her back, right hand side. Her face was obscured, both as a result of the angle and by her long hair. No part of her front was at all visible. He further referred to the evidence provided by both T and by plaintiff as to the defining factors to be taken into account in the identification of T. The first was that the bikini worn by the girl in the photograph was a bikini which belonged to T, secondly that T tied the top of her bikini at the back towards the side rather than in the middle and thirdly, that she often wore her hair band (or pony) on her wrist.

[17] In short, Mr Fagan submitted these so-called defining features revealed that T could be recognised only by people who knew her well, being her family, close friends, perhaps others who were present with her at Cape St Francis at the time that the photograph was taken. Mr Fagan conceded that there had been a further identification after the publication of the photographs by way of MXit and word of mouth. This had ensured that a number of school children identified T as being the girl in the photograph. However, in his view, there was no allegation about the further dissemination in the particulars of claim and the claim was not premised on the foreseeability as to such further dissemination. No editor in the position of Mr Bendix could reasonably have been expected to foresee such further dissemination.

[18] On the basis of this premise, Mr Fagan focused his argument on the following problem for plaintiff. The only people who recognised T would have been her close friends and family. They would not associate her with the word 'filth' as it was defined in the Oxford English Dictionary. By contrast, the only people who may have associated the girl in the photograph with the traditional meaning of 'filth' would have been people who would not have known the identity of the girl in the photograph.

[19] The evidence reveals, however, that T was identified by a number of people as being the person in the photograph. That itself is not surprising for, as Mrs Wells testified, she was a member of a small community. The photograph was prominently featured in a widely read magazine, Zigzag, and would be the subject of conversation and rumour mongering. Hence, as both T and Mrs Wells testified in evidence, which was uncontested, a range of people acquired knowledge of her identity as the girl in the photograph.

[20] In my view, it was certainly foreseeable that taking so provocative a photograph of a young girl who is a member of a small community would result in her being the subject of both speculation and identification; particularly a photograph which was described as "a pinup photo". That is exactly what occurred in this case, with unfortunate results for T.

Filth in context

'I do not see how, consistently with this single standard, it is possible to carve the readership of one article into different groups: those who will have read only the headlines, and those who will have read further. The question, defamatory or no, must always be answered by reference to the response of the ordinary reader to the publication.'

		..............
Even it the article was read only fleetingly I think that the imputation in the headline that the respondents had spied (in the ordinary sense of the word) would soon have been dispelled when the reader commenced reading the text and any lingering doubts would have been put to rest once the article had been read to the end."

[22] In relation to the requirement that words must be read in their context in order to establish whether they are defamatory, Mr Fagan submitted that two different contexts had to be taken into account. The first concerned the context of a sixteen page photo spread in the relevant addition of Zigzag magazine. The second was the fact that Zigzag magazine was a surfing magazine.

[23] On the first page of the sixteen page photo spread, the following caption appeared: "only a 100% pure surfing filth". The design was intended to replicate a stamp guaranteeing the quality of a particular food item, similar in a way to a manufacturer's "seal of approval" which appears on a range of food products. The stamp was used throughout the photo spread and, according to Mr Bendix, it was pure chance that the part of the design which appeared on the page of the photograph of T contained the word 'filth'. As the theme of the photo spread was food, the word 'honey' had also been used in the caption to the photograph of T.

[24] In Mr Fagan's view, a reasonable reader would not have opened the magazine for the first time at the page containing the photograph of T but instead read the magazine from the front. This would have provided a clear context for the "filth" caption. In addition, all the other photographs were impressive photographs of waves and intricate moves performed by surfers on waves.    No one viewing these photographs could reasonably believe that the magazine's intention was to convey anything other than a positive view of surfing culture.

[25] Turning to the second aspect, Mr Fagan submitted it was clear that this was a surfing magazine which employed words in a particular context. A cursory reading of its editorial supported this conclusion. The following passage is illustrative:
"And as the ashes were thrown into the air and the great circle tossed its hands skywards with groms, adults and old-timers all clapping and hooting widely, another image was filed right along with all those stacked horizons.   A frozen instant now joined by a fresh cyclone swell imploding onto epic sandbars, melting together into one of the many extended snapshots that define our surfing lives. Snapshots that keep us looking back, moving forwards, but always planted firmly in the moment." 

In Mr Fagan's view, the ordinary reader of this particular publication would thus have understood the meaning and context of the word 'filth' as it was employed in the magazine.

[26] Ms Buikman, who appeared on behalf of plaintiff, submitted that the primary, ordinary meaning of the meaning "filth" was defamatory, in that it meant "dirty, unsavory and obscene". Therefore, Ms Buikman submitted that, in relation to a girl posing for a photograph, the use of the word "filth" clearly had a sexual connotation, suggesting that she was a person of loose morals, without any self respect.

"The ordinary meaning of words is not necessarily the dictionary meaning. It is the meaning which an ordinary or reasonable reader would attributed to the words and this ordinary meaning must be looked at in the context in which the words were used. In determining the per se or ordinary meaning of words the courts "must take account not only of what the words expressly say, but also of what they imply."

[29] Mr Fagan submitted that, as Zigzag was a surfing magazine, in which particular surfing jargon was employed throughout the publication, a reasonable reader of that publication would have understood the particular context in which the word "filth" was employed.

[30] In evaluating this submission, account must be taken of these judgments which clearly enjoin a court to examine the nature of the words complained of as being defamatory within the context of the publication and the general category of readers who may read a particular report and appreciate the context in which it is located.

[32] Mr Bendix was the only witness led by defendants with the view to informing the court of the positive connotation of the word "filth". He was not qualified as an expert and the best he was able to do was to refer the court to various international websites, including two web pages from an Australian magazine, Outside magazine, twenty four web pages from the Cranky Kids website, which included surfers slang, an Hawaiian slang dictionary and a further list of surfer slang from Harms Archief Knol. These 'dictionaries' all included, in the definition of filth, "a filthy chick" which means a 'cool chick'. A further dictionary was provided from the Riptionary website which contains surfing language but did not include the word 'filth' or 'pure filth'. Further editions of the Zigzag magazine and a printout from the Surfhead website were also provided to the court which indicated that the word 'filth' had been used but, in this case, only within the context of the description of waves.

Animus iniuriandi

"The press will thus not be held liable for the publication of defamatory material where it can show that it has been reasonable in publishing the material. Accordingly, the form of fault in defamation against the press is negligence rather than intention to harm".

We now arrive at the conceptual problem created by these cases. If this form of defence proves successful, it is extremely difficult to see how the publisher can be found to be negligent; that is acting below the standard of a reasonable person in the position of a publisher. But, as noted earlier, it is not necessary to unravel this conundrum given the manner in which this case was pleaded.

[43] In the present case, Mr Bendix, the editor of Zigzag, chose to publish a photograph of a girl in a bikini, posing provocatively, whose consent he had not obtained. Reluctantly, he was forced to concede under cross examination that the words "pure filth" could have been read and understood by readers of the magazine in their primary sense. Although he was extremely reticent to concede the point, he did say that 'it was more likely than not that he would not' have published the photograph, had he known that it was of a twelve year girl.

[46] Strictly that is the end of the matter and I am not required to deal with the further leg of plaintiff's case, namely the alleged infringement of T's right of dignity and privacy. To the extent however that the arguments were connected and that it may help to focus on the nature of defendants conduct, I propose briefly to make a few further observations.

[47] To recapitulate: the photograph in the magazine was correctly described as a 'pinup photo'. It may have been but one such photograph in a spread of photographs dealing with waves but it constitutes a photograph of a young girl provocatively taken and used apparently "to spice up" the magazine.

[49] In the context of this case, therefore, the appropriation of a person's image or likeness for the commercial benefit or advantage of another may well call for legal intervention in order to protect the individual concerned. That may not apply to the kinds of photographs or television images of crowd scenes which contain images of individuals therein. However, when the photograph is employed, as in this case, for the benefit of a magazine sold to make profit, it constitutes an unjustifiable invasion of the personal rights of the individual, including the person's dignity and privacy. In this dispute, no care was exercised in respecting these core rights.

Damages

[50] Plaintiff has brought an action for damages totaling R500 000. Manifestly this is an excessive sum when viewed within the context of the case. Indeed, it appears from plaintiffs evidence, that, had an apology been forthcoming from defendant, the matter would not have proceeded to court.

[51] The evidence certainly indicates that T was extremely upset by the consequences which flowed from the publication of the photograph. To be called a 'slut' and a 'porno star' is an humiliating and degrading experience for anyone, but even more so for so young a person. The court therefore has considerable sympathy with plaintiff's description of the consequences of the publication; that is T's innocence was taken from her.

[50] When these factors are taken into account, it appears that the purpose of the award is to vindicate the plaintiff in the eyes of the public. Generosity of amount is perhaps less important than the principle that damages have been awarded because plaintiff has been wronged. I have taken account of this purpose, particularly because plaintiff correctly seeks an authoritative assertion that her daughter was wronged by defendants' conduct.

[51]   In the event I make the following order:

1.	The picture of T together with the words contained in the Zigzag magazine of April 2006 are wrongful and defamatory of T as a result of which she was defamed which caused damage to her good name and reputation.
2.	Defendants, jointly and severely the one paying the other to be absolved are ordered to pay the amount of R10 000. 00, together with costs.

DAVIS, J