What is Defamation?
Deformation can be described as the unlawful and intentional publication of a defamatory statement concerning another person which has the effect of lowering the good reputation of the person who has been defamed.
The law protects your reputation and provides that the unjustified publication of anything damaging to a reputation may allow you to claim damages for deformation.
How do I institute a claim for Defamation?
To protect your reputation, you can apply to court for an interdict, if you learnt that something defamatory is about to be published about you. If your reputation has already been damaged, you can proceed with an action to claim for damages for financial compensation.
What do I need to proof to succeed in my action for defamation?
You need to proof that the remarks were defamatory, intentional and Wrongful, furthermore also that the remarks referred to you directly and lastly that they were published by the defendant.
- Defamatory statement: The statement or remarks should be offending words that harmed your reputation. The Question can be asked whether a reasonable man or woman hearing or reading the remarks would think any less of you as a result.
2. Intentional: The person committing the defamation must firstly intentionally focus his or her will on damaging the other person’s reputation with certain remarks, and secondly the person making the statements must have known that what he or she is doing is wrongful and unlawful and will cause damage to the other person.
3. Wrongful: The defamatory remarks must be made contra boni mores (against public morals). The broad public must see the statement in a wrongful light and unacceptable.
4. Reference to the Plaintiff: To succeed with your claim, you need to prove that the defamatory words were aimed directly to you. If you are not specifically mentioned in the remarks, it will not be easy to proof defamation.
5. Publication: An action for defamation will only succeed if a third person heard the defamatory remarks in a broadcast or read them in a newspaper, magazine or in some other form, such as a website. The Publication can be made in writing, verbally or even in body language. The Publication can be made to one person or a few thousand people.
What defences can be used as justification for defamation claims?
There are three defences in South African law that justifies a defamatory statement. If the statement is true and in public interest, if the statement is seen as a fair comment and lastly if the statement is made at a privileged occasion it will not be considered as damaging the good reputation of another person.
- Truth and public interest: The defamer must prove that the statement is substantially true and that the public has an advantage or legitimate interest therein.
- Fair Comment: This defence protects the right of a person to honestly express his or her opinion i.e freedom of expression.
- Privileged occasion: There must be a certain type of relationship between the person making the defamatory statement and the person to whom the content was communicated, for example an attorney-client relationship.
How are damages calculated?
Damages are calculated on the basis of the harm done to your reputation. You do not have to prove any actual loss. Nor is there any type of scale for such damages. The assessment will depend largely on the views of the judge, who is guided by previous awards in similar cases and other factors, such as malice and the nature and extent of the publication, the presence or absence of adequate apology and the rank and social status of the party whose reputation was allegedly damaged.
The law of defamation is one of more complex and uncertain branches of our law, especially because a court have to balance the conflicting constitutional rights, namely that of dignity and privacy on the one hand, and freedom of expression on the other. But at the same time, the right to freedom of expression can also be limited and may not encroach on any other person’s rights, in this case the right to untainted reputation. You will need professional legal assistance to prove a defamation of character case and to claim the suitable damages.
By: Andri De Jager (LL.B)