3.
Where possible add in your own context and own information.
4.
Always credit the original source.
5.
Include a link to all original sources."
Page 229 of [2016] 3 All SA 193 (GJ)
[119] In its replying papers (which run from pages 410826 of the record) Moneyweb attaches affidavits deposed to
by editors and executives of news publications in South Africa, all expressing the view that the "aggregation
guidelines" are not in accordance with industry standards. The respondents seek the strikingout of these
affidavits on the ground that they constitute new matter in reply.
[120] M r Ginsburg submitted that the evidence of the editors is critical to the inquiries into "fair dealing" and
unlawful competition. He denied that it constitutes new matter in reply, pointing out that the respondents first
attached the guidelines to their answering affidavit (at paragraph 21). However, in paragraphs 24 to 26 of
Moneyweb's founding affidavit much is made of the respondents' "practice" of "aggregation", which it says
"means nothing more than copying original content from other news organisations and publishing it on the
Fin24's website, and misrepresenting that this content is its own." Nothing prevented Moneyweb from
attaching the editors' affidavits (appropriately modified) to its founding affidavit, to support its attack on the
respondents' "practice" of "aggregation". It chose not to do so and ought, therefore, not to be permitted to
adduce the evidence in reply. For that reason alone, the evidence ought to be struck out.
[121] In any event, the editors' affidavits are not helpful on the issues that matter in this application. First, none of
them, bar one, deals with any of the articles published by Fin24. The editor of the Daily Maverick states that he
wrote an opinion piece "after carefully considering the relevant facts". It is not clear whether he read all, or
some, or none of the articles. Second, all of the affidavits contain paragraphs that are almost identically
worded. It seems to me that someone composed the paragraphs and then copied them into all the affidavits.
Third, the content of the affidavits is unhelpful. They state that "these guidelines . . . are not in accordance
with industry standards or practice" and ". . . appear to permit a form of illegitimate and unlawful copying". If
this were a case about the legitimacy of the guidelines, which it is not, this would be an issue for the court to
decide. The editors go on to decide an issue that is one for this Court to decide: they "do not agree that a
hyperlink to an original article in the online article which has copied from or reused from the original" is
"sufficient, in and of its own, to constitute fair dealing or sufficient attribution". I deal with this issue below.
[122] In the circumstances, I have decided to strike out the editors' affidavits at pages 509540 of the record, as
well as paragraph 21.2 of the replying affidavit and subparagraphs 21.2.121.2.7.
Reporting current events
[123] I do not think that this phrase is controversial. In my view, it ought to be given its ordinary, wide meaning.
Any event that is relatively close in time to the report will qualify. It need not be an event that has occurred
on the day of the report.
Mentioning the source, including the name of the author
[124] In the context of online publication, the use of the hyperlink is a most effective way of informing the reader
that he or she can access further
Page 230 of [2016] 3 All SA 193 (GJ)
information at the click of a mouse or keypad. A hyperlink is a computer programme that links the article being
read to another article on the internet. It appears as part of the text of the article being read and is
differentiated from the text usually by the use of a different colour or by underlining or both. In my view,
almost every reader of the internet will be familiar with the use of hyperlinks.
[125] Once a hyperlink has been provided, the reader will simply have to click the link to be taken to the underlying
article where the name of the author appears. Mr Ginsburg informed me that Moneyweb does not contend,
correctly in my view, that the names of its contributing authors ought to have been mentioned in the Fin24
articles.
[126] I therefore find that a hyperlink substantially complies with the requirement that "the source shall be
mentioned, as well as the name of the author if it appears on the work".
Fin24 5 "Amplats: CEO cites JSE rules"
[127] Have the respondents proved that their publication of Fin24 5 constitutes "fair dealing" within the meaning of
section 12(1)(c)(i) of the Act? In their answering affidavit, the respondents explain that they published the
story as it "is of topical" interest to our readership because it concerns the activities of two key actors in the
economy: the large corporation Amplats and the rules of our stock exchange. This story was written [as] a
followup to other related stories that Fin24 had run previously." They also say that Moneyweb 5 was "used
by" other publications.
[128] The fact that the story was of topical interest to its readers did not relieve Fin24 of its obligation to deal fairly
with Moneyweb 5. It is also irrelevant if other news publications copied Moneyweb 5. The issue here is
whether the respondents dealt fairly with Moneyweb 5.
[129] Fin24 5 was published online within seven hours, and on the same news day as Moneyweb 5. Almost all of
Fin24 5 is a wordforword copy of Moneyweb 5. In my view, Fin24 5 has taken more than a substantial part:
it has taken the core of Moneyweb 5. The respondents do not say why Fin24 took so much, or why it did not