Polygraph critic wins libel claim

Myrtle Ryan

In a landmark judgment handed down in the High Court, Durban and Coast Local Division, this week, polygraph testing was placed under the spotlight.

Malcolm Nothling, a former Durban polygrapher, was awarded R50 000 in damages together with costs.

Nothling brought charges against the South African Professional Polygraph Association, LieTech cc, and Ben Lombaard - the owner of LieTech - for defaming his name and reputation.

Justice P C Combrinck ruled in Nothling's favour.

"For over two years I was unable to work, due to the fact that my reputation was savaged, because I took a stand and told the truth about the dangers inherent in polygraphing," said Nothling.

"As a polygrapher myself, it hurt my trade, but I believed it was in the public's interests (for me) to speak out."

The background to the case is that, in October 2002, the National Academy of Science, the premier scientific organisation in the United States, denounced the use of polygraphs. It slated it as "more art than science", and stated that "virtually no serious research" had ever been done on its efficacy.

The Sunday Tribune followed this up, by examining the effect this finding could have on the South African polygraph industry. The reporter turned to Nothling, a leading polygrapher, as a source.

Though he knew it could ruin his career, he said certain techniques, available over the internet, made it possible to beat the test. He went on record saying that on the day he himself had beaten the polygraph test, he realised it was no longer a reliable enough tool to establish innocence or
guilt.

As a consequence of his public stand, Nothling found himself the subject of a witchhunt within the industry. It became virtually impossible for him to practise his craft because of allegations made against him. The South African Professional Polygraph Association went so far as to
publish defamatory statements on its website, until action was instituted. LieTech was still publishing such statements at the time of the High Court action.

This week, however, Nothling was vindicated when Combrinck found in his favour.

"It was a virulent attack on the plaintiff's character motivated by malice," he said, mentioning "gratuitous insults and . . . in the main devoid of any truth."

The judge said that Lombaard had remained defiant, even in the witness box. A relieved Nothling, who is now running courses teaching people anger management and how to be less vengeful, reiterated the dangers of polygraphing.

"I am not happy that it has seen the end of its days," he said.

"It was a useful tool in combating crime. But it's outdated," Nothling said.

Guideline

He said the lie detector could only be used as an investigative tool. It was just a guideline, and should not be used as conclusive evidence. "When it's used as an evidential tool, it's extremely dangerous," he said. Nothling mentioned that under the Polygraph Protection Act, one had to have prima facie evidence, as well as a reasonable suspicion, before asking someone to undertake such a test.

Should the person refuse to undergo it, they were then often regarded as guilty.

"In South Africa, the law says you are innocent until proven guilty," said Nothling. "But with the polygraph test, you are regarded as guilty and have to prove your innocence."

Another inherent danger was the fact that it was a Eurocentric tool. "People with a different psychological framework, would possibly fail the test," he said.

A guilty person who had learned how to beat the test could walk free, he said, and suspicion then fell on others who might fail - even though they were not guilty.