We live in a society with different (and often opposing) rights. In the midst of frustration and anger, it is often easy to get caught up in the moment and make a statement about someone (or business) which could land you in trouble in terms of the law of delict. One of the more common reasons for conflict arises when a defamatory statement is made while expressing frustration. In this case, the right to freedom of expression exists on the one hand and secondly, the right to a good name and dignity. Both the right to freedom of expression and the right to a good name (and not having your reputation tarnished) are both rights given effect to in the Constitution of the Republic of South Africa, 1996 (“the Constitution”). It is not a clear-cut process on either end of the spectrum, nor can it be said that the one right will always outweigh the other. It is therefore important to know the requirements necessary to institute a claim for defamation and to know whether you may be sued for defamation. The requirements are set out below:
- Publication – A defamatory statement must be made publicly to a third party. i.e. to someone other than the plaintiff. The people (or person) who hears or sees this statement about the plaintiff must, as a result of such statement, believe the statement which must change their opinion of the plaintiff.
- Wrongfulness – This is an objective test, the actual damage to someone’s reputation is not considered. This inquiry involves asking whether a reasonable person would consider the plaintiff’s reputation to have been damaged. This fictional “reasonable person” must have regard to the specific circumstances of the matter – context is, therefore, an important sub-factor.
- Intention – The defamatory statement must have been made intentionally, this includes conduct or words by someone (a defendant) where the words or conduct is designed to damage the reputation of someone else (the plaintiff). The plaintiff must prove that the defendant made the statements (or carried out the conduct). Here, the question is whether the defendant foresaw or ought to have reasonably foreseen his / her words or conduct would defame the plaintiff. It is important to be aware in this instance, that where someone furthers such a defamatory statement by repeating it, they may also be delictually liable (Vengtas v Nydoo (5) 1963).
If you believe that someone has made defamatory statements about you, contact us for assistance. We will help you to make the truth known.