We all have opinions about others and like to express it. Our technological world gives a platform and audience to all who seek it. Millions of people follow Donald Trump’s Twitter account, eager to catch his latest insult of a rival, while President Zuma goes to court over Zapiro’s cartoons.
The question is: How far does our law allow you to go in expressing your views of another?
The Constitution guarantees everyone certain fundamental rights. Although one such right is freedom of expression, it is limited by another person’s rights to privacy and human dignity. Should your comments go too far and amount to “defamation”, you might find yourself having to pay compensation to the victim.
What is defamation?
The wrongful and intentional publication of defamatory words that refer to another and has the effect that it damages the reputation of such a person.
What are the legal requirements for defamation?
Firstly, it must be wrongful. In order to determine whether a statement is wrongful, the court has to ask whether it is “against public morals”.This entails an enquiry by the court of what the public considers acceptable and fair comment;
Secondly, it must be intentional. The person making the comment must have done so with the intention of harming the reputation of the person at which the comment was aimed and must have known or foreseen that it is wrongful;
Thirdly,there must be “publication” of the defamatory statement. The legal term “publication” is much wider than the usual meaning. It also covers spoken words or transmitted messages. An SMS or WhatsApp message that you send is also regarded as a publication. Despite not being the author, you can also be guilty of defamation by forwarding the message.
A person claiming that his reputation has been damaged, will need to take legal action and prove the above elements.
Except for civil claims, a complaint may also be lodged with the Equality Court, who can impose a heavy fine. This usually happens where thereis a racial undertone. Defamation of a serious nature can also amount to crimen iniuria,which is a criminal offence.
Defences against a claim.
- A defendant can deny that his statements or words were wrongful, intentional or published;
- If the defendant can show that his comments were true AND in the public interest, in other words that the public has a legitimate interest in the matter, he may escape liability;
- Given our right to freedom of expression, you are entitled to fair comment, but you must show that the comment was your opinion, rather than something you stated as an objective fact. Opinions must be expressed in such a manner that the audience will interpret it as being simply an opinion, and it must be fair in the circumstances;
- In certain cases, the person publishing comments will enjoy a certain privilege which will protect him against defamation claims.
What politicians say in parliament or presiding officers say in court,might enjoy protection.
How much can a victim claim?
This will depend on many factors, such as the rank or status of the victim, how many people heard or saw the publication, to what extent it damaged the victim’s reputation, whether or not the person making the statement offered a proper apology, etc. You must accept that any court action will cost a lot of money. If there is a racial undertone, a court will punish you and make an example of you.
Be careful what you say, publish or forward.