What is defamation?
Defamation is a civil claim that is brought on the basis of a plaintiff’s (person bringing the action) right to fama (reputation) being infringed. Reputation constitutes “the good name that a person enjoys in the estimation of others.” Defamation is defined as the wrongful, intentional, publication of defamatory material, referring to the plaintiff, which causes the plaintiff’s reputation to be impaired. This can take two forms: libel (written defamation) and slander (verbal defamation), although in South African law we do not differentiate between the two.
Who can sue for defamation?
Only the government as an entity may not sue for defamation, however individuals (such as cabinet ministers and politicians) may sue for defamation in their personal capacity. An example of this is publishing that a Minister is a sex offender – the Minister may only sue in his/her personal capacity, not in their capacity as an office bearer. Claims however can be brought against both juristic persons (i.e. companies such as publishing houses) and natural persons (i.e. individuals such as journalists in their personal capacity).
So what must one prove for defamation?
Defamation has five key elements, all of which must be proved in order for a claim to succeed. As previously mentioned, these are: publication; of defamatory material; referring to the plaintiff; that is wrongful; and intentional.
The elements of wrongfulness and intention are rebuttably presumed, meaning that they are assumed to be present. This essentially places the onus on the defendant to disprove them, rather than on the plaintiff to prove them. The plaintiff must however prove the other three elements.
Publication is also rebuttably presumed to have taken place where the material is distributed to the public (e.g. in a newspaper, magazine, website, etc.) or where the words are spoken within earshot of others (e.g. in a crowded public area). In order for publication to be present, the person to whom the information was published must also understand and appreciate the material, however it will still be defamation even if this only happens after the time of the publication (for example defaming someone in another language and that person later translates it). It is very important to note that it is also publication if something is repeated or republished by another party. As such, a party republishing information could also be liable for a defamation claim.
In terms of the element of “referring to the plaintiff”, it is only defamation if the published material refers to a specific person or group of persons that can be identified. As such, publishing defamatory material referring to “the owner of a bar in Grahamstown” will not be defamation, however if it referred to “the owner of the Rat and Parrot”, this element will be fulfilled since the plaintiff can be clearly identified. Identification can thus occur through either naming the defamed party or sufficiently describing him/her.
The final element the plaintiff needs to prove is that the material that was published was indeed defamatory. The case of Khumalo v Holomisa found that it is still defamation even if the defamatory material is true, provided that it lowers the plaintiff’s reputation in the eyes of those to whom the information has been published.
There are several defences however as established by various cases. These will be dealt with in a follow up post; Defamation and its defences.