Defamation

Question 1

Right to fama/good name

Answer 1

person’s fama or good name is the respect and status he enjoys in society.

Question 2

Defamation

Answer 2

Accordingto Le Roux V Dey
Defamation is the wrongful and intentional publication of words or behavior concerning another person which has the effect of injuring his/her status, good name or reputation

Question 3

National Media Ltd v Bogoshi 1998

Answer 3

Facts; Plaintiffs action was based on publication of defamatory articles in newspaper (alleged).
Defendats stated they were unaware of any falsity of the publications and that it wasn’t published recklessly, negligently or with animus iniuriandi and objectively reasonable & lawful.

LQ; Can media raise defence of “reasonable publication” in defamation case? Can the publication of false averments be lawful?

Court held yes. “In our law the lawfulness of a harmful act or omission is determined by the application of a general criterion of reasonableness based on considerations of fairness, morality, policy and the Court’s perception of the legal convictions of the community. Following this criterion . . . it is the task of the Court to determine in each case whether public and legal policy requires the particular publication to be regarded as lawful . . . Accordingly, ‘[w]here public policy so demands, (the Court) entitled to recognise new situations in which a defendant’s conduct in publishing defamatory matter is lawful’.”

Question 4

Elements of defamation

Answer 4

1. Publication
   2.Defamatory effect: wrongfulness

Question 5

Importance of Publication as an element of defamation

Answer 5

According to Lubbe v Robinksy defamation will arise only if the defamatory statement or behaviour has been
published or disclosed to a third person

Without such publication, the opinion of others with regard to the person involved cannot be lowered.

Question 6

When is publication not established?

Answer 6

According to Vermaak v Van der Merwe
where the third party is unaware of the
defamatory character or meaning thereof in relation to the plaintiff.

Question 7

Qualifications of the publication

Answer 7

1. the courts do not consider the disclosure of
   defamatory words or behaviour to an outsider who is unaware of the defamatory character or
   meaning thereof in relation to the plaintiff
2. the communication of defamatory words concerning a third party by one spouse to the other does not constitute publication according to the decision in Whittington v Bowle

Question 8

Steps to proving that publication lead to defamation

Answer 8

The plaintiff must PROVE that the defendant was responsible for the publication.

BY proving that the defendant was aware or could reasonably have expected that an outsider would take cognisance of the defamation.

The question is therefore whether the result objected to was foreseen or was at least reasonably foreseeable

Question 9

Who is considered to be responsible for the publication

Answer 9

Not only the person from whom the defamatory remark originated, but also any other person who REPEATS, CONFORMS, or even
DRAWS ATTENTION TO IT

Question 10

Defamatory effect; wrongfulness

Answer 10

Wrongfulness with regard to defamation lies in the infringement of a person’s right to his good
name.

Question 11

Requirements in order for defamation to be cond=sidered wrongful

Answer 11

the objectionable publication must not only impair the individual’s good name (factual infringement of personality), but must also be objectively unreasonable or contra bonos mores

But whether the good name has in fact been infringed has been deemed irrelevant by the courts

Question 12

Le Roux v Dey
a two-stage enquiry must be followed to establish prima facie wrongfulness.

Answer 12

1st is to establish the ordinary meaning of the statement.
Inquiry is objective conducted through the lens of the ordinary reasonable reader of the particular statement.

The 2nd is whether that meaning is defamatory.
– objective, whether in opinion
of reasonable person with normal intelligence and development,
the reputation of the person concerned has been injured

Question 13

What according to the two stage inquiry is therefore of decisive importance with regards to the question of wrongfulness in case of defamation?

Answer 13

The objective reasonable person test

This test must be seen as a particular embodiment of the boni mores
or reasonableness criterion (not confused with easonable person’s test)

Question 14

principles that have been crystallised in
practice with regard to the application of the objective reasonable person test

Answer 14

(a) The reasonable person is the FICTIONAL, NORMAL, WELL-BALANCED AND RIGHT THINKING person, who is neither hypercritical nor oversensitive, but someone with NORMAL EMOTIONAL REACTIONS.

(b) The reasonable person is someone who subscribes to the NORMS AND VALUES OF THE CONSTITUTION that must inform all law. The constitutional principles must therefore be the basis upon which the values and views of reasonable members of the community must be determined.

(c) The reasonable person is a MEMBER OF SOCIETY IN GENERAL and not only of a certain group. The alleged defamation must thus have the effect of harming the plaintiff’s good name in the eyes of ALL REASONABLE PERSONS IN SOCIETY

(d) The reaction of the reasonable person is dependent on THE CIRCUMSTANCES OF A PARTICULAR CASE. The alleged defamation must therefore be interpreted in the context in which it is published.

(e) VERBAL ABUSE is in most cases NOT defamatory because it normally does not have the effect of injuring a person’s good name.

(f) WORDS(OR BEHAVIOR) are PRIMA FACIE or according to their primary meaning, either defamatory or non-defamatory. Words may also have a SECONDARY MEANING which is an extraordinary meaning attached to them by a person with knowledge of special circumstances. Plaintiff may show that words which are in their primary sense nondefamatory have a secondary defamatory meaning (the so-called innuendo). Vice versa, the defendant may prove that prima facie defamatory words are non-defamatory.

(g) Where words or conduct are capable of MORE THAN ONE MEANING, the courts apply the NORMAL STANDARD OF PROOF in civil cases, that is a balance of probabilities. Where an allegedly defamatory statement is equally capable of bearing more than one meaning, one that is innocent and another that is defamatory, the COURT MUST ADOPT THE NON-DEFAMATORY MEANING.

(h) The law requires of PUBLIC FIGURES, POLITICANS AND POLICE OFFICERS (by their chosen professions) to be ROBUST and thick-skinned concerning negative comments made against them

Question 15

Conditions under which person may only institute grounds for defamation

Answer 15

if the defamatory publication concerns him or refers to him.
The plaintiff must therefore expressly aver and
prove that the defamation pertains to his good name.
The test to ascertain this connection is
again, that of the reasonable person,

Question 16

Grounds of justification (by defendant to try and defend accusations of defamation)

Answer 16

1. Privilege or privileged occasions
   2.Truth and public interest
   3, Media privilege
2. Political privilege
3. Fair comment

Question 17

When does privilege exist

Answer 17

where someone has a right, duty or interest to make specific defamatory assertions and the person or people to whom the assertions are published have a corresponding right, duty or interest to learn of such assertions. Privilege grants a person the legal right to injure another’s good name and in so doing sets aside the prima facie wrongfulness of his conduct

Question 18

Difference between absolute privilege and relative privilege

Answer 18

Absolute privilege, the defendant is protected absolutely in the sense that liability for defamation is completely excluded.
These instances are regulated by statute.

relative privilege, the defendant enjoys only provisional or conditional protection. This protection falls away as soon as the plaintiff proves that the defendant exceeded the bounds of the privileged occasion

Question 19

Categories (on privilege)that have developed in SA law

Answer 19

1. Discharge of a duty or furtherance of an interest
2. Judicial or quasi-judicial proceedings
3. Privileged reports;

Question 20

Discharge of a duty or furtherance of an interest

Answer 20

present where a person has a legal, moral or social duty or a legitimate interest in making defamatory assertions to another person who has a corresponding duty or interest to learn of the assertions.
The question of whether such a duty or interest exists causes no problems in the case of a legal duty.
The existence of a social or moral duty or interest must be ascertained objectively, using the reasonable person test.
If both parties had corresponding duty/ interest then defendant must prove he acted within scope of privilege.
When the defendant has proved this, he still only enjoys provisional, in contrast to complete, protection.
The plaintiff may still show that the defendant exceeded the limits of the privilege because he acted with an improper motive (malice).

Question 21

Judicial or quasi-judicial proceedings;

Answer 21

Concerns defamatory statements made during these proceedings.
To enjoy provisional protection, the defendant need only prove that the statements were relevant to the matter at issue.
The plaintiff may then prove that, notwithstanding their relevance, the statements were not supported by reasonable grounds.
In the absence of relevance or reasonable grounds, the defendant exceeds the limits of this privilege and acts wrongfully. If found the defendant’s assertions conform to these two requirements, the plaintiff may nevertheless show that the defendant exceeded the limits because he acted with an improper motive.

Question 22

Privileged reports

Answer 22

This category relates to defamation contained in the publication of the proceedings of the courts, parliament and certain public bodies. To enjoy provisional protection, the defendant must prove that the reporting was a fair and substantially accurate account of the proceedings. However, as in the case of the previous two categories of privilege, the provisional protection will fall away in this case if the plaintiff proves that the defendant acted with an improper motive

Question 23

Approach to Media privilege

Answer 23

because media privilege deals with the publication of untruths, defence is applied with caution.

Question 24

When determining the REASONABLENESS OF PUBLICATION, the legal convictions (boni mores) of the community must be applied.
7 factors, that aren’t meant to be complete or decisive, can be considered:

Answer 24

1. The public interest, and not merely public interestedness (or inquisitiveness) in the matter;
2. the nature, extent and tone of the allegations;

3.the nature of the information upon which the allegations were based

4. the nature of the mass medium used, television is usually more far-reaching than the written word
5. the extent of distribution and the sector of the public at which the publication is aimed
6. the reliability of the information; steps taken to verify the information
7. the extent to which other material supports the allegations at the time of publication
8. the opportunity given to the relevant person to react to the allegations

9.the necessity or urgency to publish before the truth can be positively verified;

10. the possibility that the same objective could be reached in a less harmful manner;

11.and, it must be added, the presence of a malicious motive

Question 25

Importance of truth and public interest as NB element of grounds of justification

Answer 25

The prima facie wrongfulness of the defendant’s conduct will be cancelled if he proves that the defamatory remarks were true and in the public interest

Question 26

Extent of “truth and public interest”

Answer 26

Defendant need only prove that the remarks are substantially (and not literally) true,

What is in the public interest will depend on the convictions of the community (boni mores), and in this regard “the time, the manner and the occasion of the publication” play an important role.

Unlike the case of privilege, the limits of this defence are not exceeded if the defendant acted with malice

Question 27

Four requirements for proving fair comment

Answer 27

(a) The defamation must amount to comment and not to the assertion of an independent fact. The test is that of the reasonable person.

(b) The comment must be fair. What is fair is in general ascertained by reference to the convictions of the community (boni mores). In particular, the comment must be relevant to the facts involved and convey the honest and bona fide opinion of the defendant, no matter how critical, exaggerated, biased, ill-considered or unbalanced it is, provided that the facts commented upon are not false. If relevance and honesty are present, the plaintiff may nevertheless prove that the defendant exceeded the limits of the defence because of his improper motives.

(c) The facts on which the comment is based must be true.

d)These facts must be in the public interes

Question 28

what does Political privilege entail?

Answer 28

Entails the REASONABLE PUBLICATION (false or untrue) defamatory allegations on the POLITICAL TERRAIN.

Factors that play a role in determining reasonableness of publication agree with those applicable to media privilege, with one exception, ie that the publication must be made “with the reasonable belief that the statements made are true”.

Question 29

Meaning of animus inuraiandi (intent to defame)

Answer 29

the mental disposition to will the relevant consequences, with the knowledge that the consequence will be wrongful”

Question 30

Elements required to consider intention to defame

Answer 30

1.direction of the will
2.consciousness of wrongfulness

Question 31

purpose of animus inuariandi ito defamation

Answer 31

The plaintiff must EXPRESSLY proclaim its existence
He doesn’t need to prove intent on part of defendant (its presumed)

Question 32

Burden of rebutting presumption on animus inuariandi

Answer 32

lies with the defendant
who may produce evidence which shows that either direction of will or consciousness of wrongfulness, or both, as essential elements of intent, are lacking on his part

Question 33

Grounds of justification of animus inuariandi by defendant

Answer 33

Mistake
Jest

Question 34

Mistake

Answer 34

If a person is unaware of the wrongfulness of his defamatory publication because, for whatever reason, he bona fide thinks or believes that his conduct is lawful, CONCIOUSNESS OF WRONGFULNESS, which is an essential element of intent, and therefore also INTENT, are absent as a result of his mistake.

Question where intent is required is determined subjectively

Unreasonable mistake then defendant held liable on ground of negligence.

Question 35

Jest

Answer 35

If defendant proves that he published the defamatory words in jest, in circumstances where his will was not directed at the infringement of the prejudiced person’s right to good name,

DIRECTION OF WILLL as essential requirement of intent is absent and he should be able to rebut the presumption of animus iniuriandi.

Courts don’t follow this approach. For a successful plea of jest, the courts require that the (reasonable) bystander should also have regarded the words as a joke. If that is indeed the case, the defendant is not liable; if not, the defendant is held liable, evidently irrespective of the actual absence or presence of animus iniuriandi.

Question 36

Negligence ito animus inuariandi

Answer 36

Although animus iniuriandi is traditionally required for defamation, negligence has, over time, been accepted as the fault requirement for certain forms of defamation.

1st liability based upon negligence has been recognised for distributors and sellers of printed matter containing defamatory matter.

2nd there are judgments on the liability of the press for defamation recognising nonintentional but negligent mistake as ground for liability.

3rd a general principle was introduced in National Media Ltd v Bogoshi that negligence is sufficient for defamation by the mass media and lastly there is case law that wants negligence recognised for all instances of actionable defamation, and not only in respect of the mass media.

Question 37

National Media Ltd v Bogoshi 1998 (SCA on negligence ito animus inuarandi

Answer 37

The court made a radical change, finding that adoption of strict liability was wrong, inter alia because it conflicted with the democratic imperative that the public interest is best served by a free flow of information, and the role fulfilled by the mass media in this respect.

However, the court was not prepared to return to the common-law position of liability based upon the animus iniuriandi, because it would then be too easy for the mass media to raise the absence of consciousness of wrongfulness as a defence.

Consequently, the court decided to recognise negligence as the base of liability of the mass media for defamation.

Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (SCA) that “the form of fault in defamation actions against the press is negligence rather than intention to harm”, still maintains that intent (in “an attenuated form”) is required). Liability based upon negligence deservers support because it effects a better balance between the right to good name and the right to freedom of expression in this area of the law, and it is in agreement with the values underpinning the constitutional Bill of Rights. Due to considerations of policy, practice and equity the onus of proof is on the media to show that they were not negligent (Bogoshi 1215; see Neethling, Potgieter and Visser Neethling’s Law of Personality). The mass publication of a defamatory allegation therefore creates a presumption of negligence