DEFAMATION OF CHARACTER

Everyone has the constitutional right to dignity and the common law right to a good reputation.  The constitutional right to dignity is wide enough to cover the right to a good reputation. Reputation is how third parties think of you objectively and dignity is how you feel about yourself subjectively. The same offending conduct may simultaneously violate one’s dignity and reputation.

*Who can defame you?

The media and individuals can be sued for defamation. Defamation by the media and non-media is treated differently in law. 

*What is defamation?

For non-media cases, defamation is defined as the intentional and unlawful publication of defamatory matter concerning a plaintiff which causes his or her reputation to be impaired. For media cases, defamation is defined as the unlawful and unreasonable/negligent publication of defamatory matter concerning a plaintiff which causes his or her reputation to be impaired. The difference being that; with non-media entities (individuals) the intention must be unlawful and with the media the publication of the defamatory matter must be negligent and unreasonable.

*Who can sue for defamation?

1.Natural juristic persons- legal adults, minors, mentally ill persons, unconscious persons, prodigals and insolvents

2.Artificial juristic persons- Entities /juristic persons (for loss of goodwill). We pick shopping places on the strength of their reputation. For entities to sue for defamation, they would need to show how much economic loss they have incurred due to the defamation. Non-trading artificial; persons like charities, trusts and estates can also sue for defamation. The government cannot sue its citizens for defamation.

*Elements of defamation

There are 6 elements of defamation: fault (intention for individuals and negligence for the media), unlawfulness, publication, defamatory matter, reference to the plaintiff and causation or impairment of reputation. The plaintiff does not need to prove fault and unlawfulness. If there is publication, the law will presume that fault and unlawfulness are present. The onus (duty/ burden) is on the defendant to show that fault and unlawfulness are not present in those circumstances.

1. Fault

For non-media we look at intention and for media we look at negligence. The subjective intention to injure the plaintiff’s reputation together with the knowledge of the unlawfulness of the act. The defendant is not required to know the law. He/she is required to know that it is wrong to say certain things about the plaintiff.

2. Unlawfulness

For non-media we look at the legal convictions of the society and public policy and for the media we look at reasonableness. In defamation cases, the reasonableness test is wider than the test for negligence. The tests includes: time (when is it most damaging to make certain utterances); status of public concern; political importance; tone; reliability of source; steps taken to verify the information; opportunity given to the plaintiff to verify or comment.

3. Publication

Defamation is dependent on the existence of a third party who hears, reads or sees the defendant defaming the plaintiff. Publication does not need to be intentional, it only needs to be foreseeable. It is of no consequence that the plaintiff could not understand the language the defamatory matter was published in. It is a good thing that pillow talk does not count as defamation. Publication can be presumed to have occurred if the defamatory matter was: stated within the earshot of bystanders; published in a book or newspaper (if the headline is defamatory but the article itself is not; that is defamation); published in a postcard or telegram or was published on the internet.

Rumour mongering, spreading gossip, retweeting, sharing Facebook posts is publication of defamatory matter. The plaintiff can sue the person who originated with the defamatory matter and those who republished it.

4. Defamatory matter

The law employs a two-staged inquiry and asks:

a) What the meaning of the words of conduct is (primary v secondary meaning)

b) Whether the imputation lowers the plaintiff in the estimation of right-thinking persons generally [negatively reflects upon the moral character of the plaintiff (imputing criminal conduct, imputing dishonest conduct, imputing immorality, saying one is a police informer) or subjects the plaintiff to hatred, contempt or ridicule]

It is insufficient for people to shun the plaintiff; their views must be downgraded. Meaningless abuse is not defamation. The plaintiff can sue for infringement of dignity but not defamation (crimen injuria and actio injuria). It is difficult for courts to decide on the uniform measure of a right-thinking person in multi-cultural societies. The courts have decided that if a substantial and respectable section (minority) of South Africa considers certain utterances to be defamatory, then such utterances are defamatory, provided those views of this minority section are not contrary to good morals. This might mean that if a person comes from a society where gay people and prostitutes are persecuted, calling that person gay or a prostitute in that community would be defamation. It is also important to note that morality changes over time hence it has been decided that the following is not defamatory matter: saying a person is a member of a political party, religious group or nationality; or lives in a slum; is uneducated or is homosexual.

5. Reference to the plaintiff

The defendant must have expressly referred to the plaintiff. If not, the test is whether the reasonable person would have understood the words complained of as referring to the plaintiff. There is no class action for defamation in South Africa, each case must be decided on individually.

6.Causation or Impairment of reputation

Causation is presumed for the majority people. The reputation rule applies. There are two classes of people: people who we think so highly of that we do not believe the negative things we hear about them and people we think so low of due to their reputation that we believe everything negative we hear about them. Courts will also look at the implication of ongoing online publication and the extent of publication of defamatory content. For this, the courts will bear in mind that once something has been published online on one platform, it can be screen grabbed and shared onto another social media site.

*Defenses for a defamation of a character law suit

There are defenses that rebut fault and defenses that rebut unlawfulness. The list of defenses is not closed off. If the defendant comes up with a well-motivated defense, the court might be inclined to agree.

Defenses for fault are mistake of law or of facts (this is a very difficult defense because ignorance of the law is not an excuse. The media can also be sued for libel if the defamatory matter is untrue); jest or joke (any reasonable listener will know that a comedian was joking) and rixa/provocation (think of the ‘twars’ on your twitter timeline).

The defenses for unlawfulness lie in legal policy, reasonableness and public policy. These are: truth for public interest; fair comment (there are four requirements: statement must be a comment not a statement of fact; comment must be fair, relevant, honest and free from malice; the facts commented on must be true and the comment must be on a matter of public policy); absolute privileged (e.g. statements made during parliamentary proceedings) and qualified privilege (this only works if the statement in four instances: where statement was made in discharge of a duty to a person who has a reciprocal interest in receiving that information; where the statement was published during judicial/quasi- judicial proceedings; where statement was published in reports of proceeding of courts, parliament or public bodies and reasonable press privilege)

*Damages

After proving all the elements of defamation (the standard of proof is on a balance of probabilities and not beyond a reasonable doubt), the court must decide on the amount to be awarded in damages. Our courts are stingy, a defamation law suit will not enrich the plaintiff.  The courts look at four factors: the character and status of the plaintiff; the nature of the words used and their calculated effect; the extent of the publication and the subsequent conduct of the defendant including attempts to rectify the harm. The damages to be awarded should not be too high that they inhibit freedom of expression but should be enough to assuage the plaintiff’s wounded dignity. In some cases, the court may interdict the offender from publishing the defamatory matter or order that the defendant issue a retraction and apology. The golden rule for apologies is that the apology must be as loud as the disrespect. The more public the apology, the less likely that the court will grant the damages.

*Conclusion

The widespread use of social media poses new challenges for our courts, however traditional principles of defamation are applicable to defamation through the social media. Social media users need to educate themselves on what amounts to defamation and how they can avoid being implicated in a defamation law suit. Questions that often arise are: how to establish ownership of a social media profile where such ownership is disputed (ghost accounts); who is in charge of a fan account; who is liable for anonymous defamatory matter posted on one’s social media page; whether an individual can be liable for defamatory post they did not make but were tagged in; whether comments posed as questions can be regarded as defamation; whether one can apply for an interdict against social media websites especially where other remedies are available; and the role played by apologies in claims for damages.

Please note : It is better to approach the wrongdoer than to try and get Mark Zuckerberg and Facebook to take down a post or comment. Courts will make limited allowance for inflammatory language used during an emotional charged dialogue but hate speech is a criminal offence and you will be prosecuted for it. Truth is not always a defense- truthful gossip is still gossip. Defamatory matter framed as a question amounts to defamation. Untag yourself from defamatory posts. Apologise with the same noise when you make defamatory comments-an apology goes a long way. Retweeting, re-sharing, screen grabbing to share on a different social media platform, re-posting and forwarding on WhatsApp qualify as endorsements -it is called republication.

Sources: J Neethling-Law of Delict; Manuel v Economic Freedom Fighters and Others; Le Roux v Dey; Jonker v Davis; SAAN v Schoeman; Phahlane v POPCRU; Stocker v Stocker; Musk v Unworth; Heroldt v Wills; Lawrence and Others v Mitha and Another; Isparta v Ritcher; Ducth Reformed Chuech Vergisig v Sooknun; Qwelane v South African Human Rights Commission 2020 (2) SA 124 (SCA); Geyser v Porit; PP Singh- Social Media and the Actio Injurium in South Africa An Exploration of new challenges in the online era