Defamation of character

Written by ADV Riaan de Jager

Defamation of character 

In order to determine whether you have been defamed, regard should be had to our common law.  In terms of our law of delict, defamation is defined as “the intentional infringement of another person’s right to his or her good name” or, to elaborate, “the wrongful, intentional publication of words or behaviour concerning another person which has the effect of injuring his status, good name or reputation”.

Since the good name, respect or status which a person enjoys in society relates to the opinion of others concerning him or her, and defamation consists in the infringement of his or her good name, it is self-evident that defamation will arise only if the defamatory statement or behaviour has been published or disclosed to a third person.  Publication is thus a necessary requirement for defamation and will be satisfied if the words or conduct are made known or disclosed to at least one person other than the plaintiff (i.e. you, as the person who wants to sue for defamation) him or herself.Once publication is established, the plaintiff must prove that the defendant (i.e. the person being sued for defamation) was responsible for the publication.

Another requirement for defamation is wrongfulness and this lies in the infringement of a person’s right to his or her good name.  The only relevant question is whether, in the opinion of a reasonable person with normal intelligence and development, the reputation of the person concerned has been injured – this is thus an objective approach.

It is noted that the prima facie wrongfulness of the conduct of the defendant will be cancelled if the latter proves that the defamatory remarks were true and to the public benefit or in the public interest that they be published. The defendant therefore only needs to prove that the remarks were substantially – and not literally – true (i.e. that the sting of the charge is true).  What is in the public interest will depend on society’s sense of justice and fair play (the so-called boni mores) and in this regard, the time, the manner and the occasion of the publication play an important role.

The prima facie wrongfulness of a defamatory publication may also be set aside if the defendant proves that the defamation forms part of a fair comment on facts that are true and in the public interest. In order to qualify as “fair comment”, the comment “must be based on facts expressly stated or clearly indicated and admitted or proved to be true”. The comment must thus be justified and malice or improper motive by the perpetrator of the comment also acts to defeat the defense of fair comment. The law requires as well that there must have been the intent to defame, in other words, the mental disposition to will the relevant consequences, with the knowledge that the consequence will be wrongful.  If a person is therefore unaware of the wrongfulness of his defamatory publication, intent will be absent.  His or her mistake therefore rebuts the presumption of intent.

In order for you to succeed with a claim for damages against a defendant based on defamation, a court will determine which version of events (i.e. yours versus theirs) will be the most probable (i.e. a balance of probabilities as opposed to “beyond a reasonable doubt” which will apply in criminal proceedings).

Please note, however, that a claim for damages based on defamation will have to be instituted in the High Court (depending on the extent of your damages claim) which could be very expensive. However, before doing so, you could consider requesting the defendant to formally retract the allegations against you and to provide you with an apology in order to clear your name.

It is essential for you to brief an attorney to guide you further in these matters.