Why do we have to continue talking about this?

Defamation of character has become one of the most frequent issues that clients raise with attorneys. Either they are being defamed on social media or are accused of defaming someone else or a business on social media.

It would be easy to keep blaming it on the anonymous, profile-pictureless bots online, but it isn’t that simple anymore. More and more people are falling into this online defamation trap by believing that they can say what they want online without any real-life consequences.

Social media remains a public platform and everyone using the platform has the right to not be defamed by someone else and there are indeed serious legal consequences for your actions online. There have been multiple court cases dealing with this area of law in the last few years.

A breakdown of “defamation”

Defamation is, in the simplest sense of the word, the wrongful and intentional publication of defamatory words or conduct about another person. Basically, when you say something about someone else that causes harm to their reputation or makes another person, or the general public, think less of them.

The test applied by our courts to determine whether a statement is defamatory, is called the reasonable person test. If a reasonable, objective person hearing or reading the words would think any less of you as a result thereof – then it would be considered defamation[1].

The three main elements of defamation are: wrongfulness, intention and publication.

What does that word “wrongfulness” mean?

The comment made must be against public morals. This simply means that the broader public must see the statement as wrongful and unacceptable.

It is at this point where our courts have the difficult task of balancing our rights – what one person sees as a defamatory remark, someone else might be completely fine with.

A clear example of a wrongful statement would be accusing someone on social media of committing a crime while knowing it is a false statement.

Moving on to “intention”.

In Khumalo v Holomisa[2] the court stated that “[o]nce a plaintiff establishes that a defendant has published a defamatory statement concerning the plaintiff, it is presumed that the publication was both unlawful and intentional. A defendant wishing to avoid liability for defamation must then raise a defence which rebuts unlawfulness or intention.”

As the court presumes that the statement is intentional once it is proven to be defamatory, this element must often be proven be the party defending the allegation of defamation.

To prove this element, you firstly have to prove that the person intentionally focussed his or her will on damaging your reputation with a comment or statement.

Secondly, you have to prove that the person making the statement or comment knew that what he or she has said is wrongful or unlawful in the eyes of the law and will cause damage to you.

Thirdly, the remark must refer to you directly or indirectly. For example, if a remark is posted on Facebook about “this idiot at work”, you will need to be able to prove that this directly refers to you in an office of 20 people. Even if you know the person is speaking about you, will anyone else reading the comment also think so?

An example of an intentional remark is if an ex-employee posts on his social media that the company he previously worked for accepts illegal tenders from government and he tags the company by name. If this is untrue, the employee obviously had the intention to harm the company’s reputation.

Lastly, the element of “publication”.

This seems obvious – it needs to be published. Publication is interpreted to not only mean in writing, but to also include a statement made verbally or even by using body language or hand gestures.

Defamation of character is only a violation of rights if the statement is communicated by one person to another who is not the person who is defamed. Before social media, publishing would be mostly be something printed in a newspaper or a magazine, but now publication includes sending a WhatsApp, posting on Facebook, Twitter or Snapchat, posting a picture to Instagram or uploading a video to TikTok. Remember that social media is a public platform and each of us using this platform essentially becomes a publisher in our own right.

We also need to remember that in our law, the person who shares content is as liable as the original creator of the content. Every person who likes, shares or reposts content on social media will be treated exactly the same as the person who created and first posted the content. Once you share, like or repost content, you are associating yourself with that content.

The same principal applies to tagging. If someone tags you in content, it looks like you are a part of the conversation and again, associated with the content. It is therefore vital to be careful regarding the chain of publication.

What about freedom of expression? Do we still have that right?

Everyone in South Africa has the right to freedom of expression in terms of Section 16 of our Constitution. However, this right can and will be limited. Your right to freedom of expression cannot trump someone else’s right to an untainted reputation.

This is why defamation of character cases are always complicated and why the courts have the hard job of weighing up two sets of personal rights to arrive at an outcome that is fair and reasonable for both parties.

What defences can the other party use to justify the defamation claims you make?

There are three defences most commonly used to justify a defamatory statement.

  1. Truth and in the public interest. Here it would be argued that the statement is substantially true and the public has a legitimate interest in it. However, remember that the fact that you believe the public may be interested in a particular matter and it is true does not mean that it is actually in the public interest to publish it. You can still defame someone

 

  1. Fair comment. In this defence, it must be argued that each South African citizen has the right to honestly express his or her opinion i.e. freedom of expression. The opinion expressed must be based on facts and be expressed on a matter of public interest for it to qualify as a protected opinion.

 

  1. 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 for this defence to succeed. Whether the comment is true or untrue does not matter in this case as the circumstance under which the statement was made, is privileged.

Remember these are merely defences you may raise for the court to consider – it doesn’t mean that they are watertight. You can still be held liable for defamation even if you believed that your statement is true and in the public interest.

If I can prove defamation, what are my options? Can I claim damages?

If someone is defaming you and it has immediate serious consequences for you, i.e. you might lose your job or your business’ brand is affected negatively, or someone is constantly harassing you on social media with defamatory posts, you can apply to the relevant court for an interdict to force the person to remove all the posts about you and to refrain from posting about you in future.

You can also obtain a protection order in terms of the Protection from Harassment Act 17 of 2011.

The usual legal route to follow when a statement, written or spoken about you, diminishes your good reputation in the eyes of an objective and reasonable person, and the statement was made with that intention, is an action for damages for defamation. This means issuing a summons.

Damages are calculated on the basis of the harm done to your reputation – either financial damages or emotional damages. To claim financial damages, you have to prove actual financial loss, for example your business is losing clients, you lose a job, you have to move schools, etc. To claim emotional or non-pecuniary damages, you do not have to prove loss, but the courts will determine the extent of the damages awarded on a case-by-case basis.

The assessment will depend largely on the views of the presiding officer and case law. They will look at previous awards in similar cases and at certain factors such as:

  • The nature and extent of the publication.
  • Presence or absence of an adequate apology; and
  • Rank or social or professional status of the party whose reputation was damaged.

The amount of damages is assessed on the basis of the extent of the damage to your good reputation.

Conclusion

The law on defamation of character is not as simple as it may sound – there are quite a few intricate parts to consider. With the use of social media in the internet-fuelled world we live in, this is even more true. We suggest consulting an attorney if you are being defamed or accused of defamation to ensure you can understand what your legal standpoint is and what legal routes you can follow.

[1] South African Associated Newspapers Ltd and Another v Yutar 1969 (2) SA 442 (A)

[2] Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC)