INFRINGEMENT OF REPUTATION

Question 1

What is the law of defamation mostly concerned about?

Answer 1

It is concerned with protecting a person’s reputation against any unjust attack.

Question 2

Reputation refers to…

Answer 2

the respect and status he enjoys in society therefore any action that has the effect of reducing his status in the community infringes his reputation

Question 3

Claim instituted against the infringement to right to reputation

Answer 3

Actio iniuriarum

Question 4

Distinguish between Reputation and Dignity

Answer 4

Reputation- what others think of you
Dignity- what a person thinks of themselves

Question 5

Definition of Defamation

Answer 5

It is the wrongful and intentional publication of defamatory material that refers to the plaintiff

Question 6

True or False: True defamatory words are also actionable

Answer 6

True

Question 7

The defamatory material must…

Answer 7

1. reach someone other than the person who is being referred to
2. be likely to damage a person’s reputation by having the propensity to lower the person’s good name and standing in public

Question 8

For liability to arise…

Answer 8

There must be a factual violation of the right to reputation

Question 9

The plaintiff must prove…

Answer 9

1. the material was defamatory
2. referring to the plaintiff
3. was published

Question 10

Two rebuttable presumptions

Answer 10

1. Wrongfulness
2. Intention
   The onus rests on the defendant to disprove

Question 11

Who can sue?

Answer 11

1. Natural persons
2. Artificial persons under restricted circumstances
3. Non-trading corporations
4. Political Parties and trade unions u.r.c
5. Government officials in their personal capacity and not as the Government itself

Question 12

There is publication when…

Answer 12

the defamatory material is disclosed to at least one other person who is not the plaintiff
No publication= claim for infringement of dignity

Question 13

The third party must…

Answer 13

be aware, understand and appreciate the meaning of what is being conveyed

Question 14

Pieterse v Clicks

Answer 14

Court held that someone could be defamed where a public search of a handbag in a shop is conducted in front of other shoppers suggesting that the owner of the handbag may have been guilty of shoplifting

Question 15

Who may be sued?

Answer 15

Everyone who contributed to the publication. Anyone who repeats, confirms or even draws attention to the defamatory material.

Question 16

Types of defamatory material

Answer 16

A. Written- author, editor, newspaper owner, printers, publishers, distributors and libraries
B. Oral- speaker, broadcaster, presenter
C. Internet- Host, network provider, service provider and a person who is tagged and does not remove the tad

Question 17

Isparta v Richter 2013

Answer 17

Defamation on Facebook
Damages awarded
Tagging
- defendants did not want to say sorry

Question 18

True or False: Intermediaries(middle man) eg Postal services are held liable

Answer 18

False

Question 19

Under which conditions shall the republisher be held liable?

Answer 19

It will depend on the following circumstances:
1. the republisher intended the re-publication of the material
2. even when not intended, repitition
3. even when not intended, person had a moral duty to repeat the material

Question 20

Untended communications issue:

Answer 20

whether courts should attribute the communications to the defendant.

Question 21

Unintended communications principle:

Answer 21

Courts shall hold the defendant that published the defamatory material liable, even though the publication was unintended, where it was reasonably foreseeable that the publication would occur.

Question 22

Unintended communications case law

Answer 22

Pretorius v Niehaus
Court found that the person could not reasonably have expected that the plaintiff’s wife would have opened the letter addressed to the plaintiff therefore NOT liable

Question 23

The communication requirements

Answer 23

1. Positive conduct in a form of a direct message
2. Positive omission- failure to remove the defamatory material

Question 24

The communication Rebuttable presumptions

Answer 24

1. distribution to public
2. words spoken within earshot of others
3. material appears on postcard

Question 25

RM v RB

Answer 25

The respondent posted various defamatory statements on Facebook regarding the plaintiff. 1. The applicant sought an order to remove them= order granted 2. The respondent to be interdicted from publishing further defamatory statements= rejected on the basis that it would constitute an unreasonable interference with respondent's right to freedom of expression

Question 26

Exceptions to defamatory material

Answer 26

Privileged communications b/w spouses and client-attorney are protected

Question 27

Determining what constitutes a defamatory material

Answer 27

1. meaning of words/conduct 2. whether meaning is defamatory 3. reference to plaintiff

Question 28

1. Meaning of words/conduct

Answer 28

1. Primary meaning= ordinary 2. Implied meaning= inherent in the words themselves and an ordinary reasonable person of average intelligence would be able to grasp the meaning of the words in question by construing them in context 3. Secondary meaning= hidden/innuendo; understood by communicator and communicatee 4. Quasi-innuendo= nothing to do with meaning of material but more with whether the meaning of the words bear is more defamatory - additional sting -

Question 29

Reasonable listener/reader/viewer test

Answer 29

The court must take into account the manner in which an ordinary reasonable reader/listener/viewer would read and understand the material. Courts generally accept that the reader of newspaper articles do not scrutinize or over-analyze and often draw conclusions after they have skimmed, glanced over the material. N.B: Must be read in the context of the whole publication

Question 30

2. Whether meaning is defamatory

Answer 30

Legal convictions of community- what does the society deem as defamatory The benchmark= Would the words tend to lower the plaintiff in the estimation of the right thinking members of society in general?

Question 31

Defamation case law: Slim v Stretch

Answer 31

Court won't consider opinions of a section of the general public whose narrow views depart from the general norm 1. person's moral character or lifestyle 2. hatred and ridicule 3. shunning/avoiding: mental and physical disposition 4. professional or business reputation

Question 32

Defamation Case law: Le Roux v Dey

Answer 32

Image of the principal and deputy principal naked -Boys apologized but deputy principle rejected the apology and claimed for defamation and dignity 1. words/image portray the principals as a gay, sexual immorality, etc. 2. meaning is defamatory- Dr. Dey's reputation is of high authority however at best the claim that succeeds is the violation of dignity

Question 33

3. Reference to the plaintiff

Answer 33

There must be a casual link b/w publication and reference(direct/indirect) to plaintiff and the plaintiff must prove that 1. words are capable of referring to him 2. words actually refer to the plaintiff in that a reasonable person would know and understand that the words refer to the plaintiff personally

Question 34

Wrongfulness Presumption

Answer 34

Presumption of wrongfulness unless defendant proves otherwise Criterion: legal conviction of society Question is whether the sense of justice in the community would dictate that the plaintiff should be successful in an action for defamation

Question 35

Wrongful presumption Court

Answer 35

Court balances b/w two rights: 1. plaintiff's right to reputation 2. defendant's right to freedom of expression

Question 36

Intention presumption

Answer 36

Presumption of intention unless proved otherwise by defendant 1. direction of defendant's will 2. defendant's knowledge of wrongfulness of one's conduct

Question 37

Defamation case law: Modiri v Minister of Safety + security

Answer 37

SCA held: once court is satisfied the plaintiff has proved there had been publication of defamatory material referring to the plaintiff, presumptions of fault and wrongfulness arise

Question 38

Grounds of justification associated with infringements of personality interests

Answer 38

1. Truth for public interest 2. Fair comment 3. Privileged occasion 4. Reasonable publication

Question 39

1. Truth for public interest