What exactly constitutes a defamatory comment or statement? What needs to be proved by the complainant? More importantly, are there any defences available for the defamer?
What is defamation?
Defamation can be described as the wrongful and intentional publication of a defamatory statement concerning the complainant which has the effect of tarnishing the complainant’s good name or reputation.
From this definition there are three essential elements that must be present in order for the complainant to be successful in a claim for defamation, namely:
- Wrongfulness – The defamatory comment or statement must be made contra bonos mores. Simply stated, the community must attach a negative connotation to the statement. It is a task for the Court to balance two conflicting constitutional rights while deciding on this element, namely the right to reputation of the complainant and the right to freedom of speech of the defamer.
- Intentional – The Latin term animus iniuriandi refers to the intention to injure. This subjective concept comprises two components. Firstly, the direction of the defamer’s will towards injuring the reputation of the complainant and secondly, the defamer must have the necessary knowledge to know that the complainant’s reputation would suffer.
- Publication – A factual violation of one’s right to reputation can only occur if one person communicates a defamatory statement to a third person, ie. via publication. The publication can be written, made verbally or even by using body language or hand gestures. The test which applies to this element is whether a reasonable objective person would understand the communication in a negative light.
Who bears the onus of proof?
The complainant bears the onus to prove that a violation has occurred. The onus then shifts to the defamer, who will try to defend the case, using one of the various possible defences.
What defences can be used as a justification?
In South African law there are three defences most commonly used to justify a defamatory claim, namely:
- Truth and in public interest / public benefit – The defamer must prove that the material is substantially true and that the public has an advantage or legitimate interest in the material. Both elements must be proven.
- Fair comment – This defence differs from the truth and public interest defence mentioned above in that the basis of this defence is the fact that a comment or opinion exists. This defence therefore protects the right of a citizen to honestly express his genuine opinion.
- Privileged occasion – There must be a certain type of relationship between the person making the defamatory statement (the defamer) and the person to whom the content was communicated for example, an attorney-client relationship (the recipient). Whether the comment is true or untrue, and whether it is fact or opinion, is not important. It is the circumstance under which the comment was made that is privileged. The defamer has a legal and/or moral obligation to make the recipient aware of the comment and in return, the recipient has a legal interest to be made privy to the content thereof.
A third party’s right to recourse against the complainant’s attorney in divorce proceedings
The question comes to mind whether a third party can sue an attorney who publishes defamatory material regarding a third person in divorce proceedings. Simply explained, does X (the third person) have a claim against Y (the attorney) if it is stated in the court summons that X had an affair with the spouse of Y’s client? Currently in South Africa there is no case law dealing with this particular set of facts. However, we are of the view that this does not mean that an attorney simply has carté blanché to publish defamatory material without taking some measures to test the veracity thereof.
How can attorneys ensure they are not accountable?
It is recommended that an attorney who is acting on his or her client’s instruction and which instruction involves accusing a third party of any wrong doing – which accusation under normal circumstances and if not contained in a legal letter or court process would indeed constitute defamatory remarks – attempts to establish corroborating facts or circumstances for these allegations before committing them to writing.
Although accountability is normally sought to be discharged by using phrases such as “it is my instructions ….” or “according to my client…” this may possibly not be sufficient to elude a claim for defamation.
The complexity of a claim for defamation lies in the balance that needs to be maintained between two fundamental rights and testing those rights to what the broader society finds acceptable or unacceptable. With changing morals in modern society, in the near future it might become even harder to prove a defamatory comment.
Our Litigation and Dispute Resolution team has broad knowledge and experience handling defamation claims and related legal matters. We are always acutely aware of the expense of litigation and where possible, explore alternative methods to achieve cost-effective dispute resolution without compromising on the desired result.
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The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.