Tag Archives: Publication

Be careful what you write or say

B1Many people may not consider the things that they say in public or write online. This is often because of the right of freedom of expression. However, defamation can be a harsh reality for those who believe they can say what they want without consequences.

Typically, the law of defamation attempts to strike a balance between a plaintiff’s right to reputation, and a defendant’s right to freedom of expression – two rights that are recognised both at common law and in the Constitution. Defamation should be considered seriously when interacting with others through letters, e-mails and general discussions.

What if I think someone has defamed me?

You (the plaintiff) would first need to prove that a comment regarding you was publicised (to someone else) and secondly, that the comment was prima facie (obviously) defamatory. Once this has been determined the onus is on the other person (defendant) to prove that his/her conduct was not wrongful. In other words, that they did not intentionally try to defame you.

Wrongfulness is based on intent as opposed to negligence. Even where it remains that the comment was wrongful, the defendant might still have several defences like:

  1. Truth of the statement;
  1. That the comments are in public interest;
  1. That the comment was just an opinion and not given as a fact;
  1. That the comment was fair under the circumstances;
  1. That the comment was made under circumstances of qualified privilege, where the defendant had a duty and someone else had a duty to receive the comment.

But the comment was the truth?

The fact that the comment was the truth does not mean that it isn’t defamatory. The test to determine defamation is whether a reasonable person of normal intelligence would view it as defamatory. The defendant can succeed with his defence of fair comment and public interest if no element of maliciousness is involved. The plaintiff only has to prove that the comment was prima facie defamatory of his/her character and that it was publicised.

So if someone has stolen something, and has been convicted of the crime, it’s not defamatory to call them a thief. However, if someone has only been accused of theft and has not yet been convicted, calling them a thief of out spitefulness could be considered defamatory. This is simply because being called a thief could hurt their reputation and whether or not they stole something has not yet been determined to be true.

Publication can be to a specific person or within hearing distance of the general public and is material if heard by or publicised by the public in a book, postings on websites, or bulletin boards on the Internet. The onus is on the defendant to prove their defences. If there are two versions before a court it should decide on the most probable version under the circumstances.

In a democracy, forthright criticism, wild accusations and innuendos – often unfair and unfounded – are part and parcel of political activity. Right-thinking people in society generally do not think less of politicians who are subjected to derogatory statements by opposing politicians or political commentators. The context might cause material that would otherwise have been defamatory, to be no more than mere abuse. Courts allow wide latitude for political debate and politicians should not be over-hasty in complaining. Nonetheless, it is important to note that courts extend latitude, not immunity, and there are limits. A distinction must also be drawn between an unwarranted attack on the dignity and reputation of a politician and an attack on the person’s political views, policies and conduct. Courts have to give effect to the values of openness, transparency and accountability, yet protect dignity and privacy. It seems that the bounds are exceeded where improper motives or dishonourable conduct is imputed.

References:

  • Law of South Africa, Volume 8(1) – Second Edition Volume
  • Delta Motor Corporation (Pty) Ltd, vs Van der Merwe, 2004 (6) SA 185 (SCA)
  • Constitution of the Republic of SA, 1996 ss 10 and 16
  • National Media Ltd vs Bogoshi, 1998 4 All SA 347 (SCA)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).