Media24 back off from defamation claim against photographer


Staff writer

In another David and Goliath court case, Media24 appear to have bitten off more than they’d like to chew when they attempted to sue Cape Town photographer and copyright fundi Geof Kirby for defamation after he questioned the legality of their freelance contracts.
But in a turnaround, rather than breathing a sigh of relief at the withdrawal, Kirby would like to haul them back to court to face up to their syndication activities, which Kirby believes have been illegally carried out with no recompense to freelancers, for at least two decades.

It seems Media24 unwittingly sprung their own trap when, following an email to colleagues within a closed e-group expressing this opinion, they served him with a letter demanding a retraction within 24 hours or face a R100 000 defamation suite.
But Kirby, incensed at the contracts Media24 expected freelancers to sign, as well as by their “bullying tactics”, refused to back down.

He said Media24 were using their contracts to legitimise their foreign syndication practices, which he said he “believed” were illegal in terms of existing legislation, which includes the South African Copyright law (1978) with amendments, and the Berne Convention, to which South Africa is a signatory.
On the cover of their contracts Media24 state that their agreement is merely a restatement of the law itself, something which Kirby said is “disingenuous”.
“In fact it’s actually an attempt at deceit, especially in light of Media24’s past behaviour in trying to enforce rights they didn’t have.”
In section six of their agreement they state the freelancer has to hand over all intellectual property rights and their moral rights (i.e. the right to be identified as the author and not to have their work mutilated in any way) to Media24.
Furthermore, the section indemnifies Media24 from “any claim made against it that the use of the work infringes any copyright or other Intellectual Property rights held by a third party and against any loss incurred by Media24 pursuant to such a claim”.

This effectively makes the freelancer assume the responsibilities of a publisher, said Kirby, as should the publisher be sued for publishing an image, the freelancer would have to pay the costs.

The main reason Media24 want to grab all these rights, he said, is so that they can syndicate the work on their business-to-business syndication arm, Images24, without having to pay the author of the work a cent. Their foreign syndication, he says, goes back to the ‘80s.
After refusing to retract, a summons for defamation of character - in Afrikaans, was delivered to his door. He said he sent it back politely asking for an English translation.

Media24 responded by saying he would suffer a default judgement if he didn’t deal with it in seven working days.

Kirby then found a lawyer and started preparing his defence. He said he has found three legal opinions which argue that Media24’s foreign syndication violated South African copyright and the Berne Convention.

And, he said, whether or not corporations can sue for defamation is an unanswered legal question in this country. (The well-known SAB vs. Laugh it Off case involved infringement of trademark)
After two “false starts” in court, Media24 withdrew the case subject to both sides bearing their own costs.
He said he does not know why they withdrew, but suspects that his requests for contracts pertaining to photographers whose work he knew had been syndicated abroad indicated the background knowledge he had, and put them on the run.

However, Kirby has refused to bear his own costs as he says doing so would effectively penalize him for a case which never went through court, and has filed affidavits compelling Media24 to meet his costs on a taxed basis.

Responding to emailed questions, Media24 communications head Lutfia Vayej said: “Media24 has always acted in good faith to protect its good name and reputation and in the Geof Kirby matter Media24 acted within its rights. Media24 confirms that for operational reasons and for good relations with photographers generally, the matter was withdrawn.”
In response to questions posed over the validity of their contracts in relation to South African copyright law and the Berne Convention, Vayej said copyright was a “complex area of law” that was subject to “a very high level of specialization”.
“We therefore do not wish to express a legal opinion without taking specialized advice.”
The final settlement date of the case is at this stage unknown.