The Law of Defamation: What happens when, in a debate, slander becomes the tool of the loser?
As with millions of people around the world, we at HJW Attorneys have been following the Heard/Depp case extremely closely, and it has been a huge topic of debate in our office every day for the past six weeks. This fascination has stemmed not only out of pure morbid curiosity but also out of a desire to see how the Law of Defamation played out when put to the test in such a high stake and high profile manner in a court of law. We can confirm that we were amongst those South Africans who actually sat up (red wine and popcorn in hand) to watch the historic judgment of USD10.35 million being awarded to Mr Depp on 1 June 2022.
Whilst this trial was definitely scintillating (and we believe worthy of being made into its own movie)– it is highly unlikely that our courts would ever see a settlement of this nature being awarded to a Plaintiff. One of the higher awards we have seen in our courts to date for an individual plaintiff was the awarding of R500 000, to Trevor Manuel as a result of a defamatory Tweet made about him by the EFF. This however is still a significant sum of money and goes to show that even though we as South Africans have a right to “freedom of expression”, this right is not unlimited and as such, South African’s are most definitely not free to say and/or post whatever they may like to the detriment of others.
All too often, we as attorneys are tasked with having to defend individuals who have gotten themselves into legal trouble (civil and often criminal) by defaming someone or something, often under the mistaken belief that they are allowed to have done so because what they said was “true” or “in the public interest” or (and this is my favourite…) “only my opinion”…. We hate to be the bearers of bad news, but whilst some of these defences are sometimes applicable as defences to defamation, their application is extremely narrow and nuanced as we will briefly detail in this article.
To help you better understand the obligations on you when speaking of others, in this article we have tried to put together a very basic “Defamation for Dummies” which can hopefully help guide you as to what types of things you can and can’t say (online or elsewhere) by detailing what defamation is, what the justifiable defences to defamation are and the obligations on you when using social media.
What is Defamation?
Defamation can be defined as the wrongful and intentional publication of a defamatory statement concerning a person (the plaintiff). To be defamatory, the plaintiff need only establish that a statement was “published” and that it was harmful to the plaintiff’s reputation.
In order for a statement to be “published”, it only needs to be made known to at least one other person, aside from the person being defamed. Published material does not need to be printed… it can be made through speech, on the internet, on photographs or on social media.
According to the case of Mthembi-Mahanyele v Mail & Guardian, the Supreme Court of Appeal confirmed that, in order for a statement to be deemed to be defamatory, the test that must be applied is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned or to be harmful to that person’s reputation.
Further, and of importance to note is that in order for a statement to be harmful to someone’s reputation (and thus for defamation to exist), it is not necessary for the specific person’s name to be mentioned in the published statement. It will be sufficient if the plaintiff can prove that he/she can be identified by a third party through inference. All too often we are faced with cases where clients believe themselves to be innocent of defamation simply because they didn’t actually state (or type) the persons’ name, even though any reasonable person would have been able to identify the individual simply by the context of the publication.
Once the aforesaid has been proven, the other elements of liability are presumed to exist, meaning that the publication was both wrongful and intentional.If the plaintiff is able to establish that the person doing the wrong (defendant) has published a defamatory statement, the plaintiff will be able to claim damages in the form of compensation for the injury to his reputation..
Defences to Defamation:
Once it has been established by a competent court that a statement is defamatory, there are certain very specific and narrow defences that can be raised. These defences can be summarised briefly as follows:
TRUTH AND PUBLIC INTEREST
If it can be proved, on a balance of probabilities, that the statement is true AND in the public interest, then the defendant will enjoy protection from a claim of defamation.
Whilst a statement need not be literally true in every detail (McKerron 186) – it must be true as a whole and ‘in every material part thereof’ (Feldt v Bailey; Johnson v Rand Daily Mail). If it is not true then the court will not even consider the 2nd ‘leg’ namely, that of “public interest”.
Thus, to succeed with a defence of “Truth AND Public Interest”, the publisher must prove two things. That a statement if materially true and also that it is of “public benefit” to publish it (“Public Benefit” is defined very narrowly and it is important to note that something being “in the public interest” is not the same as merely being “interesting to the public”)
FAIR COMMENT
With a defence of “Fair Comment”, the publisher may attempt to argue that in making the statement, they believed themselves to be doing the right thing, regardless of the correctness of their belief. In doing so, they lacked the wrongful intention necessary to constitute a violation of the law. According to the McBride case, in order to succeed with a defence of “fair comment”, the publisher must be able to prove the following elements:
(a) the statements complained of must constitute comment as opposed to fact;
(b) the factual allegations being commented upon must be true;
(c) ALL of the facts upon which the comment is expressed must be truly stated;
(d) the comment must be honestly expressed, without malice; AND
(e) the comment must relate to matters of public interest.
PRIVILEGE
The final defence which applies to defamatory statements is that of “Privilege”. To succeed with this defence, the publisher must be able to prove that the statement was made under privileged circumstances. This protects statements made by someone who is under a moral or legal duty to make such statements or has an interest in making such statements to someone who has an interest in hearing them or a duty to do so, for instance, a statement made during litigation proceedings to, for instance, an attorney or Judge.
Defamation in an Online Context: Keyboard Warriors Beware….
Whilst ,unlike Amber Heard, most of us will never get the opportunity to write an article for the Washington Post, it is likely that almost every single one of us runs almost exactly the same risk as she did, every single day, most especially when we engage on social media, (which, as already mentioned above) constitutes a form of “publishing” – even if only to a single other person on a WhatsApp chat.
As such, it is extremely important that social media users educate themselves on what Defamation is and what the justifiable defences to it are, most especially as, as Pierre De Vos once said, “there is something about internet websites and social media platforms that seem to bring out the worst in people. Reasonably decent people who might well carefully weigh their words can become raving hatemongers and irresponsible tattletales on these platforms”
In an attempt to highlight some of the dangers of posting online – below we set out some important cases which provide some guidelines as to how you need to behave when engaging online…
Posting your “Opinion”
In the case of Heroldt v Willis, an interdict was granted against the defendant for posting derogatory messages against the plaintiff suggesting that he was an unfit father to his girls because of “the alcohol, the drugs and the church”. The defendant had refused to remove the postings arguing that she had the right to freedom of expression, which the court had to balance against the plaintiff’s right to privacy and dignity. Ultimately the court ordered the defendant to remove the defamatory posts and to pay the plaintiff’s legal costs as the postings were deemed to be defamatory and unlawful and the court found that the right to privacy outweighed the right to freedom of expression. In addition, the court held that the statements did not qualify as “fair comment” as they were not based on facts and could not be proven to be true.
Simply being “Tagged” in or “Sharing” Questionable Material
In the case of Isparta v Richter, the court went one step further and awarded damages to the plaintiff against both the first and second defendant where the first defendant had posted inappropriate comments on Facebook about the plaintiff, calling her a bad mother and allowing an inappropriate relationship between her stepson and daughter to develop. Interestingly, the second defendant (who was the husband of the first defendant and the ex-husband of the plaintiff ) was tagged but did not add to the posts, and the court found him jointly and severally liable for the defamatory posts. The court found against him as there was no effort by the second defendant to “untag” himself or show that he strongly rejected such comments. The fact that he was aware of the posts, remained silent after being tagged, and chose not to distance himself from the remarks all added to the legitimacy of the postings in the eyes of other readers. The court noted that there was no attempt to apologise on the part of both defendants and as a result awarded an amount of damages to be paid by both defendants. The decision is of great importance because it indicates that it is not just the initiator of a defamatory post that can be held liable but anyone who is tagged and does not take steps to dissociate themselves from the defamatory posts can also be held liable. The court also highlighted the fact that anyone who shares a defamatory post may also be liable for defamation.
“Liking” Posts
In yet another example of the dangers of posting on social media, in 2017, a Swiss Court made a very important ruling where a man who “liked” a Facebook post accusing another of anti-Semitism and racism was convicted of defamation. In this case the judge, Catherine Gerwig indicted that a “like” is associated with a positive value judgment indicating support for the content.
What about WhatsApp/Telegram and Comments on Group Chats?
In the case of Mwanele Manyi v Mcebo Freedom Dhlamini, the court found that the plaintiff’s right to dignity, was clearly infringed when he was called a, “lame horny old donkey” on a WhatsApp group chat. The court held that the defamatory words were intended to violate the plaintiff’s right to reputation, self-worth, dignity and privacy and such publication on WhatsApp, which is a social media platform had the potential to reach a wide spectrum of readership.
Does it Matter Where in the World the Post was Made?
In the Manyi case, another important principle was enshrined, when the court referred to the case of Tsichlas v Touch Line Media (Pty) Ltd, which held that national or geographic boundaries are irrelevant when dealing with the internet and electronic communications. In this case, the court reiterated that in such matters, publication can take place anywhere in the world where the user has accessed the website and has read and understood the words – i.e. it does not matter where the particular group chat was set up or where in the world the poster is located when making the post in question.
In conclusion, defamation cases, most especially those that relate to online defamation (that arena where everyday people become “publishers” who are subject to the same rules as the editor of the Sunday Times when publishing an article on the front page), will continue to spiral out of control until people figure out how to protect themselves from the perils of using this ever-growing forum of communication.
Don’t let yourself get caught out…watch what you say and post, but also be aware of even just participating in anything that could be found to be defamatory – if in doubt: distance yourself. While you may feel emboldened behind a screen…you are by no means protected.
For more information kindly email us on info@hjw.co.za.
Written by Megan Harrington-Johnson
Co-authored by Cathleen van der Walt
This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW ATTORNEYS at info@hjw.co.za directly for advice applicable to your specific matter.
