What is defamation?

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 (wouldan 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).

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