We often hear the word “defamation” and do not always understand what is meant with it. Generally, defamation relates to some form of negative remark published about someone. Before getting into the details of defamation, it is important to note that defamation can be difficult to prove. Defamation matters tend to turn into lengthy court procedures where courts have to decide whether defamation occurred or not, depending on the specific circumstances of a matter. Not every defamation matter is the same and different scenarios cannot always be compared with each other. Some matters can be easily determined, while others can be difficult. The below information sets out the basic aspects around defamation.
What is defamation?
- Defamation is defined as an unlawful publication of a statement made by a person (“defamer”) about another person (“defamed”). Publication generally refers to instances where a third party hears or reads the statement.
- The statement causes harm to the defamed’s good name, reputation and dignity.
- Defamatory statements include:
- those affecting a person’s moral, political or personal character, for example, by stating that a person is dishonest, corrupt or a criminal;
- those relating to a person’s occupation, for example, by stating that a person is an incompetent doctor;
- those causing financial embarrassment, for example, by stating that a person cannot pay his/her debts; or
- insults, false accusations, vulgar language and profanity like a swear word.
What does a defamed person need to prove in court?
- There are requirements that must be met before a claim of defamation can succeed in court.
- These requirements are:
- publication of a statement (verbal and/or written);
- the defamer must intend to defame a person;
- there must be harm or injury; and
- the publication must violate a person’s right to his/her good name, reputation and dignity.
What remedies are available to a defamed person?
- A defamed person can prevent defamation by approaching the court for an interdict or instituting a claim of compensation for damage.
- A defamed person may also be awarded compensation for special damage in the form of patrimonial loss. This means that s/he incurred a loss in the reduction of his/her financial position as a result of the defamatory statement. For example, if the defamatory statements cause the defamed to lose his/her job, s/he can claim for loss of income.
- The court will exercise a wide discretion in determining compensation for damage. The court applies an objective test and it will have regard to all the factors and views of society.
- Factors which the court may take into account are:
- Statements containing allegations of crimes: serious crimes may cause greater harm to a defamed person’s good name and reputation than allegations of minor crimes.
- Statements published to groups of people: statements made to a wider group may attract a higher award of damages than a statement published to a limited number of people.
- Evidence of character: a defamed person may provide evidence of his/her good character and the defamer may provide evidence of the defamed person’s bad character.
- An apology: Expressions of regret will be considered relevant by the court to mitigate the harm or injury.
- The court will look at whether the reasonable man in the street would regard a statement as defamatory.
What defences are available against a claim of defamation?
- For a defamer to escape liability, s/he must prove that the publication of the statement was:
- true and published for the public benefit;
- privileged, such as between an Attorney and Client;
- published in terms of law, for example during the investigation of a crime;
- in the course of court proceedings;
- published in self-defence; or
- published with the consent of the defamed person.
- If the defamatory statement comes with physical assault and threats of violence, it is also a criminal matter that must be reported to the police.