The right to recourse in terms of defamation
15 January 2021 | Ariko Stoltz
Defamation of character is described as the intentional and wrongful publication of a defamatory statement in regards to an aggrieved person, which statement has the consequence of tarnishing and / or damaging the aggrieved person’s reputation and good name.
In terms of the abovementioned description, an aggrieved person has to proof the presence of three essential elements (“essentialia” – being the minimum requirements) in order for the aggrieved person to be successful with a claim of defamation, these being the following:
The defamatory statement made, must be against the good morals of the community (“contra bonos mores”). Therefore, simply explained, the community must experience a negative connotation to such a statement. The task will be placed in the Court`s discretion to balance the conflicting rights of the aggrieved party in terms of his or her constitutional right of dignity and good name and the countering constitutional right of the defamer in terms of their right to freedom of expression.
The aggrieved party must prove that the defamer possessed the intention to injure him or her (“animus iniuriandi”). The subjective test relevant towards the element of intention revolves around two elements. Firstly, the will of the defamer to injure the aggrieved party must be directed towards the aggrieved party and secondly, the defamer must possess the necessary knowledge to understand that the aggrieved party`s reputation and good name would likely suffer damage from such a defamatory statement.
The existence of a factual violation of an aggrieved person`s right to dignity and good name can only exist if the defamer communicates a defamatory statement or publication to a third party and or person; therefore, a defamatory statement must be published. The said publication can take a number of forms, therefore it can be written, declared verbally, using body language and or hand gestures and more recently, posts on social media platforms such as Facebook and Twitter, to mention but a few. The Court will test this specific element on the balance of probability in regards to the question – whether a reasonable person would receive the statement and or communication in a negative light in respect of the aggrieved party.
In the course of the claim, the aggrieved party bears the onus of proof to prove that the alleged violation did indeed occur. The onus of proof thereafter shifts to the defamer, whom would in turn attempt to defend the action. In terms of the defamer’s defence, the defamer may utilise various defences which are good in law. In South African law there are three defences commonly utilised for justifying a defamatory claim, namely:
- The Public interest in regards to the truth:
The defamer must prove that the statement and or publication is true and that the truth holds an advantage towards to public or that the public has a legitimate interest in the statement and or publication. It is however of importance to note that both elements must be present to be successful in raising this defence.
- Commentary that is fair:
The defence of commentary that is fair differs from the defence of the public interest and the truth, in that this defence is based on the fact that a comment and or opinion must exist. This specific defence is forthcoming from the constitutional right of freedom of expression; therefore, it protects the right of a citizen of South Africa to honestly express his genuine opinion.
- The occasion of privilege:
In this occasion a certain type of relationship exists between the defamer and the aggrieved party to whom the content was communicated, for example an attorney-client relationship. Whether the statement and or publication is true or untrue, and whether it is a fact or opinion, is not of importance. The importance of this defence is set squarely on the circumstances under which the statement was made.
It is apparent from the abovementioned that a claim for defamation has a complex nature, as a fine balance is required to be maintained between the fundamental rights of the parties involved and testing such rights against what society will find acceptable, alternatively not. One would therefore advise caution to any person whom is of the intention to make any publication or statement which may affect another, although the ever-changing morals in modern society might pose a degree of relaxation in terms of the right to freedom of expression, the constitutional right to dignity and good name of an individual might still outweigh the opinion of a modern world.