If someone portrays you as a homosexual, you cannot sue them for defamation. But if they portray you as a sexual being, you may well make a quick defamation buck. 

That is exactly what our part-time liberal friends at Constitutional Hill have now established. The constitutional court has undone an already patchy commitment to liberalism by showing a prudish, conservative attitude towards sex.

This odd attitude towards sex is poorly masked by a more sensible attitude towards sexual orientation. Apparently the ‘sex' in ‘sexual orientation' should remain in the closet. Here is what went down (so to speak).

The court wants kudos for denying a deputy headmaster (in the case of Le Roux and Others vs. Dey) damages when the deputy headmaster, one Dr Dey, told the court, "These damn kids suggest I'm gay! Punish them!" The learned' jurists response? "So what dude?! It's ok to be gay. Be reasonable, man." 

But when the deputy head used a different line, "They suggest I wank!" he immediately succeeded in pricking (no pun intended) their collective conservative moral conscience. Even Justice Edwin Cameron (way too sensible to be a prude) found himself, torturously, in a schizophrenic minority judgment penned with Justice Froneman, agreeing with the masturbation damages claim on the spurious analysis that, while being called gay should make you smile, being depicted as a sexual being is a heinous act of dignity-obliterating proportions, fit for civil punishment.

So what was the court's response to the deputy head's second line of attack? "NOW we feel you Sir. We, too, would not be amused. We hereby mandate a return to Victorian mores! Take some of the money we're awarding you and go forth and set an example to your school by covering even the legs of your school piano. No to nudity! No to sex!"

The case, as is clear, centred on a deputy headmaster's demand for compensation on grounds of defamation and injury to his feelings following the superimposition of his face (and that of a colleague‘s) on an image of two naked men seemingly engaged in sexual activity.

Does such a depiction really amount to defamation though? Does it, beyond that, also amount to an injury of the deputy head's feelings, and so constituting an additional ground for further compensation?

The defamation claim is as unconvincing as it is humourless. The majority failed to take adequate account of both the context of this case, as well as making an elementary conceptual error.

In terms of context, how can anyone not see this case as a classic school boy prank? It is a case in which, like millions of pupils before them and millions more to come in the years ahead, the school kids in this case lampooned their authority figures. That is the point of being a child, of being a school pupil - poking fun at the expense of your teachers. Of course there are limits. But we can hardly draw the legal line at the school notice board where two kids put up a computer generated image of their teachers in an allegedly sexually compromising position.

If punishment is then to be meted out at all, it should be the normal school rules that apply, not civil law. Indeed, what makes the constitutional court ruling particularly pernicious is that the pupils had already been disciplined.

Their honours awards were suspended, they had to do detention and even helped to clean up at the local zoo as part of community service. No deputy headmaster should, beyond these school punishments, successfully sue for defamation damages.

The average person in that school community will not think less of the deputy head. They will not regard his powers as now impotent. They will laugh this off as a prank. And so the defamation test in law is not met.

The constitutional court defied both common sense and the reasonableness test in its conclusion that Dr Dey was defamed.

The court also made a fatal conceptual error. It interpreted the image as suggesting that Dr Dey is "of low sexual morality", that he is sexually licentious and "promiscuous". These interpretations are stupendously hasty. The judges fail to distinguish between what is being depicted (in other words, what is objectively in the image) and how the visual data that is in the image might be interpreted by a bystander.

If we assume (for sake of argument) that the image does depict the deputy as promiscuous, say, does it follow that that is how a viewer of the childish prank will, in fact, now view the deputy head? Or that the deputy head should take himself to now be of a promiscuous bent? Of course not! Not least within the context of this being an image that is generated by a school pupil and put on the school notice board.

In the end, however, this case is most disappointing because of the counter-productive value-laden description of the image.

Why do two men, even with legs crossed, signal promiscuity or low sexual morals? That is how the court interpreted this image. It is difficult, despite Froneman and Cameron's argument that this is not about sexual orientation, to understand this hasty description as anything other than an expression of latent homophobia. Would an image of a man and woman in the same position be instantly described as a depiction of low morals or promiscuity? I doubt it.

Even if homophobia is not lurking in the background, the court is surely not thinking clearly by allowing a representation of an adult as a sexual being as something that a reasonable person can be offended by. We are sexual beings. That is not something shameful, let alone something that should be the object of a successful lawsuit.

In a country where we are still grappling to get people to even think and talk about sex openly and healthily, this kind of judicial conservatism only adds to that social challenge. It is not what we need in a time of HIV/AIDS. If we force someone to accept homosexuality to be so banal that they cannot cry when being depicted as one, then surely we should also force them to accept that being a sexual being is equally innocuous. Indeed, some teachers should be chuffed at such generous depictions.

- McKaiser is an associate at the Wits Centre for Ethics. He also presents Interface on SABC3 at 930pm every Sunday

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