Defamation occurs If
someone unlawfully and intentionally publishes a defamatory statement
concerning you that lowers your good name and reputation in the eyes of the
community.
You may be able to sue someone in court to compensate you for injured
feelings and for the hurt to your dignity and reputation that you suffered by
what someone said about you or published in an email, in a newspaper or
magazine or on social media. The publication does not have to be in writing –
e.g. someone can defame you in a pub in front of other people.
The court will assess the amount of the damages you may claim based on circumstances of your case and the prevailing attitudes of the
community in which you live or practise your trade or profession.
To
succeed in any claim, you must prove that that the remarks
concerning you were defamatory (offending words that
harmed your reputation), intentional (the person set about damaging your
good name) and unlawful (would an unbiased person view the
statement as unacceptable), that they referred to you directly and were
published (other people heard the defamatory remarks, read them in a
newspaper, magazine or in social media, etc.)
The factors which the court may consider include:
·
The nature of the defamatory statement
Given the changed morality of our times, if someone calls you a liar
and a thief, this would likely cause greater hurt to your dignity and
reputation than a statement that you are an adulterer.
·
The nature and extent of the publication
A defamatory statement published in the Sunday Times that has a very
large readership as opposed to one in the Nelspruit Herald may attract a higher
award of damages.
·
The reputation, character and conduct of the
plaintiff
Someone who enjoys a reputation of high moral character will likely be
able to claim more than someone who is of dubious integrity.
·
The motives and conduct of the defendant
The court would award more damages to someone that acts out of pure
malice and embarks on a deliberate and unfounded attempt to destroy your
reputation, as opposed to a person that thinks that he or she acts out of a
sense of perceived duty.
·
Dignity and privacy v. freedom of expression
The
court must weigh up your constitutional rights of dignity and privacy on the
one hand, and freedom of expression on the other.
Defences to claims for
defamation
There are three defences
in South African law that justifies a defamatory statement: If the statement is
true and in public interest (the statement is substantially true and the
public has a legitimate interest in hearing it); the statement is seen as a fair
comment (allowing freedom of expression) and if the statement is made on
a privileged occasion (a certain
type of relationship exists between the person making the defamatory statement
and the person to whom the content was communicated, for example an
attorney-client relationship).
