This QVC case against Donn Edwards … ugh!
Mindful of Tony Lankester’s valid comments, this is a rant! It is my opinion and is not researched and I haven’t taken much care to fact check with all parties concerned.
The case between QVC (Quality Vacation Club) and Donn Edwards just irks me for a number of reasons. It is also a lesson in how to deal with litigation thrust on you by bullies. While I respect Donn’s desire to handle this fight himself, he was at a distinct disadvantage from the start because he is not a lawyer and he is playing on a structured and complex playground.
The way QVC’s lawyer managed to take an order against Donn at the start of the matter to prevent him from publishing defamatory remarks is a good illustration of this. While a law abiding person should have an issue with a court order saying he can’t do something illegal, Donn should have opposed this application. QVC’s attorney also should have taken the time to at least tell Donn what time the application would be heard and in which court. Attorneys do have an ethical duty towards unrepresented parties to do at least that much. I wouldn’t be surprised if QVC’s legal team omitted to inform the judge that Donn had made numerous enquires about whether the matter was going to court and, if so, which court and what time. The Johannesburg High Court building contains dozens of court rooms and it isn’t that easy to figure out where something is going on.
QVC’s effort to have Donn found in contempt of court follows on from that initial interim court order and the argument is likely to be that he continued to defame QVC and its trustees in his blog and is therefore violating the court order. I hope that Donn challenges this application properly because this is where it is important to argue that even if what he has been posting is defamatory, it is excusable. The reason I say this is because of how defamation works. Even if QVC can prove that Donn’s blog posts are defamatory, Donn has a range of defences he can raise which would effectively excuse the defamation. Two of these defences include the argument that the comments are true and in the public interest and the other is that the comments are fair comment. In a way, the application to have him found in contempt could be where this whole thing is decided so he (and the rest of us) would be well served if the big guns are thrown at that application. I don’t know how far those proceedings are but I have spoken to Donn and he does have someone assisting him so I am sure he has that in hand.
Generally speaking I’d like to see QVC go down in flames. Like a great many people, I am routinely called about some prize I have one based on a raffle ticket I was stupid enough to buy in 2005 or so (I know this because these idiots consistently get my name wrong). I don’t know which company is behind those calls. It may be QVC or some other crowd. Whoever it is, having one less company like this around is a good thing.
This case also highlights the need for a strong EFF-style organisation in South Africa that has the funding and the resources to get involved in cases this important. We do have the Freedom of Expression Institute which does excellent work. Unfortunately their resources are limited and they can’t take all of these cases on. I am sure this is a source of frustration for them.
I would like to see a strong defence mounted to QVC’s proceedings. I see this as being a test case for the law of defamation in the context of online publishing and blogging in particular. The legal principles are fairly well established but we need to see how the courts will apply them to blogs and other forms of social media. At the very least we need confirmation they will be applied in a way that protects freedom of expression.
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defamation, donn edwards, qvc, high court, quality vacation club, freedom of expression
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