An unfortunate Dey for Mr Le Roux and co.

Mar 30, 11 An unfortunate Dey for Mr Le Roux and co.

A few days before the hubbub around the Hugh Glenister decision of the Constitutional Court, another rather interesting judgment was handed down: Le Roux v Dey  ([2011] ZACC 4). Three high school boys, with the infinite wisdom of gentlemen their age, created and circulated (within the school) an image of their principal and vice principal’s heads superimposed on the bodies of two homosexual men, photographed naked and in a sexually compromising position. Deeply offended by this, Dr Dey (the vice principal) sued for defamation, pursued his claim through three different courts, all the way to the Constitutional Court, and won. The boys were ordered to pay R25 000 in damages.

The law of defamation looks like this: If you say something that is going to tarnish my reputation, I am entitled to patrimonial compensation from you, to remedy the damage. In short, you made me look stupid, so you must pay me money, and then I’ll feel much better, and be able to carry on with my life as if nothing happened. Really? (I ask, with tears in my big blue eyes)…

This difficulty with this area of law is highlighted so beautifully in Le Roux v Dey. It relies on the idea that damaged reputations can be repaired with cash. If one were to discuss this with a poor soul who had been defamed, and subsequently won compensation in a court case, he/she would probably tell you that the victory was immensely satisfying. He/she would not only have received fiduciary fulfillment, but also vindication in a court of law, with the judge symbolically slapping the defamer on the wrist.

However, it is certainly no more than a symbolic victory. Money cannot fix a reputation. It is something amorphous – an unintended consequence of one’s way of life/manner of conducting business/interactions with the world. It is not an end in itself. There is no way to ‘fix’ it. Assuming, of course, that the reputation was so terribly badly damaged to begin with.

While vindication of reputation is a goal that has long been considered worthy in our law (and remains so in many cases), the net effect of the majority judgment in Le Roux v Dey misses the mark. The behavior of Mr Le Roux and co. was typical of a large proportion of boys their age. It was not acceptable, and should not be tolerated. However, irrespective of how malicious their intentions at the time, they were ultimately still children. Their poorly-made decisions should be evaluated as such. A legal challenge reaching the highest court in the land (while wonderfully exciting for those of us examining the development of the law) is not appropriate punishment. It smacks of an ongoing quest for retribution at the expense of an extremely stretched judicial system and a very busy Constitutional Court bench.

The sequence of events presents a rather interesting (slightly modified) example of the “Barbara Streisand Effect”. In 2003, Barbs attempted have a photograph of one of her homes removed from the internet. As a result, interest in and consequent online publication of the photo shot up. In our case, Dr Dey inadvertently caused some of his own damage. At the time of the incident, publication of the offensive image was limited to the school. In continuing to fight the matter all the way to the Constitutional Court, coverage (and hence discussion) has reached levels it never would have otherwise. In attempting to repair damage to his reputation, Dr Dey has simply increased it. For now we are all discussing him as the man from the offensive picture.

Image by bloomsberries