If you follow the news or read magazines you would by now know of Meghan Markle and Prince Harry. There have been numerous articles published which pertain to their character and reputation and of the two of them, Meghan has by far been more criticized and publicly shamed.
One would therefore wonder if there is any right of recourse for statements made by another person which tend to tarnish your good name and reputation.
In as much as we all have the constitutional right to freedom of expression, this right is not without its limitations. When one oversteps the limitations, it can lead to defamation of another person’s good name and reputation.
Defamation is defined as any damaging statement that is made publicly with the intention to harm another person’s reputation. A statement is defamatory if it tends to lower another person’s standing in the eyes of “right-thinking people” and a publication refers to any form of communication whether spoken or written or even non-verbal for example an image, which is made to at least one person apart from the complainant.
It is important to note that the perpetrator can be the person who first publishes the defamatory statement, but other people who subsequently repeats the publication may also be defined as such.
The primary remedy that is available to a successful claimant in a defamation action is the award for damages. However, there are other non-monetary remedies which include a declaration of falsity and retraction of the defamatory statement; issuing of an apology; or giving the claimant an opportunity to respond to the allegations.
There are, on the other hand, possible defences to a claim for defamation which are designed to protect freedom of expression and public interest. These include the defence that the publication is true and is in public interest; that the statement is seen as fair comment and that the statement is made on a privileged occasion, for example, a statement made to the police when reporting a crime.
Besides, the above defences, journalists are even further protected against defamatory claims. In the case of National Media Ltd & Others v Bogoshi 1998 (4) SA 1996 (SCA) the Court made it clear that it is the right, and indeed a vital function, of the press to make available to the community information and criticism about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion.
To that end, South African journalists can defend themselves against defamation claims by showing that they were reasonable or careful in their work, even if at a later stage, their statements are shown to have been untrue and defamatory. However, the key words are “reasonable” and “careful”. Journalists cannot publish blatantly false statements without taking diligent steps to confirm their validity before publication.
It is for this reason that Prince Harry succeeded with a claim against publishers of the Mail on Sunday and Mail Online over published claims that he “turned his back” on the Royal Marines after those publications were later shown to be baseless, false and defamatory. The Mail on Sunday had to issue an apology, as well as pay damages.
Should you need assistance with a defamation claim or with defending a defamation claim please feel free to contact us.