DEL | Ch. 10 - Forms of iniuria

Question 1

How are the different types of iniuria classified?

Answer 1

According to the different rights of personality that are already recognised and protected in our law:

1. The rights relating to physical integrity;
2. The right to fama (good name);
3. The right to dignitas (collective term for the rights to dignity, privacy, feelings and identity).

Question 2

Discuss iniuria per consequentias

Answer 2

1. At common law an iniuria could not only affect a person directly, but also indirectly through other people.
2. This indirect iniuria arose in connection with 3 relationships: husband-wife; father-child; testator-heir.
3. Since there is no examination of whether these 3 people have in fact suffered personality infringement (which is essential for the existence of an iniuria), our courts are reluctant to recognise this concept.
4. Thus, the current position is very different from the common law one. The person involved in a particular relationship is not automatically affected by the indirect iniuria. He will only be able to succeed with an action if his personality has in fact been infringed.

Question 3

Discuss personality infringement and patrimonial damage

Answer 3

1. An iniuria primarily infringes a personality interest of another, but it often causes patrimonial damage as well.
2. In principle, the prejudiced person must then institute 2 actions: the actio iniuriarum for satisfaction and the actio legis Aquiliae for patrimonial damages.

Question 4

In which cases did the court confirm that patrimonial damages must be claimed with the Aquilian action whilst non-patrimonial damages be claimed with the actio iniuriarum?

Answer 4

Media 24 v SA Taxi Securitisation

Question 5

Discuss personality rights of juristic person

Answer 5

1. The Dhlomo case confirmed that a juristic person has personality rights
2. Juristic persons have a personality right to fama worthy of protection. The question is whether this vew is justified in light of the common basis of the actio iniuriarum, may be asked.
3. Since honour (dignity) and feelings lies exclusively in injury to the feelings, and a juristic person does not have feelings that can be hurt, the recognition and protection of these interests of personality are impossible in the case of a juristic person.
4. Injury in terms of privacy and identity is possible with juristic persons. (Financial Mail v Sage)

Question 6

What is a person’s fama/good name?

Answer 6

Is the respect and status he enjoys in society.

• Any action which has the effect of reducing his status in the community, consequently infringe his fama and is in principle an iniuria.
• A distinction is made between defamation in general as iniuria, and those forms of infringement of good name which have in practice already crystallised into specific forms of iniuria under different names (ie, malicious prosecution and wrongful and malicious attachment or property).

Question 7

Define defamation?

Answer 7

The intentional infringement of another person’s right to his good name.
- The wrongful, intentional publication of words or behaviour concerning another person which has the effect of injuring his status, good name or reputation.

Question 8

What are the elements of defamation?

Answer 8

1. The act (publication of words)
2. An injury to personality (the defamatory effect of words or behaviour)
3. Wrongfulness (the infringement of the personality right to good name)
4. Intent (animus iniuriandi)
   - It is not required that the defamation must be false; true defamatory words can also be actionable.

Question 9

Discuss publication as an element of defamation

Answer 9

1. The good name, respect or status which a person enjoys in society relates to the opinion of others concerning him, and defamation consists in the infringement of good name, it can only arise if the defamatory statement or behaviour has been published or disclosed to a 3rd person.
2. This requirement is satisfied if the words or conduct are made known or disclosed to at least 1 person other than the plaintiff himself.
   - Courts do not consider the disclosure of defamatory words or behaviour to an outsider who is UNAWARE of the defamatory character or meaning thereof iro the plaintiff as publication.
   - The communication of defamatory words concerning a 3rd party by one spouse to the other does NOT constitute publictation (Whittington v Bowles)
3. Once publication is established, the plaintiff must prove that the defendant was responsible for the publication.
4. It is a general rule that the publication is attributed to the defendant if he was aware or could reasonably have expected an outsider would take cognisance of the defamation.
5. The question is whether the result objected to was foreseen or was at least reasonably foreseeable.
6. Not only the person from whom the defamatory remark originated, but also any other person who repeats, confirms, or even draws attention to it, is in principle responsible for its publication.

Question 10

Discuss defamatory effect: wrongfulness as an element of defamation

Answer 10

1. When determining wrongfulness, the question of whether the good name of the person involved has in fact been infringed is irrelevant.
2. In Le Roux v Dey the court gave a 2-stage enquiry which must be followed to establish prima facie wrongfulness. This test is the embodiment of the boni mores or reasonableness criterion - which is the yardstick for wrongfulness (and must not be confused with the reasonable person test for negligence).
3. The wrongful act must have been committed against the plaintiff. Thus, he must expressly aver and prove that the defamation pertains to his good name. This test is also the reasonable person test.

Question 11

What is the 2-stage enquiry ito Le Roux v Dey

Answer 11

1. Establish the ordinary meaning of the statement.
   - It is an objective enquiry conducted through the lens of the ordinary reasonable reader of the particular statement.
2. Whether that meaning is defamatory.
   - Whether, in the opinion of the reasonable person with normal intelligence and development, the reputation of the person concerned has been injured (thus also an objective approach).
   = If the above are met the words or behaviour is defamatory to, and in principle prima facie wrongful against that person.

Question 12

Which principles have crystallised wrt the application of the Le Roux v Dey test?

Answer 12

1. 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.
2. The reasonable person is someone who subscribes to the norms and values of the Constitution that must inform all law.
3. The reasonable person is a member of society in general and not only of a certain group. The defamation must have the effect of harming the plaintiff’s good name in the eyes of all reasonable persons in society.
4. The reaction of the reasonable person is dependent on the circumstances of the particular case. The alleged defamation must therefore be interpreted in the context in which it is published.
5. Verbal abuse is in most cases not defamatory because it normally does not have the effect of injuring a person’s good name.
6. Words (or behaviour) is prima facie or according to their primary meaning, either defamatory or non-defamatory.
7. Where words or conduct are capable of more than one meaning, the courts apply the normal standard of proof in civil cases. When 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.
8. The law requires of public figures, politicians and public officers to be robust and thick-skinned irt negative comments made against them (ANC v DA).

Question 13

What happens once the plaintiff proves the publication is defamatory and that it refers to him?

Answer 13

Proof of prima facie wrongfulness.

- A presumption of wrongfulness then arises, which places the onus on the defendant to rebut it.

Question 14

List the grounds of defences available to the defendant

Answer 14

1. Privilege or privileged occasion
2. Truth and public interest
3. Media privilege (reasonable publication of untruth)
4. Political privilege
5. Fair comment

Question 15

Discuss ‘privilege or privileged occassion’

Answer 15

1. Privilege exists when someone has a right, duty or interest to make specific defamatory assertions and the person to whom the assertions is published have a corresponding right, duty or interest to learn of such assertions.
2. Privilege thus 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.
3. There is absolute and relative privilege.
4. With absolute privilege the defendant is protected absolutely in the sense that liability for defamation is completely excluded. These are regulated by statute (ie. members of parliament).
5. Relative privilege, the defendant enjoys only provisional or conditional protection. It falls away as soon as the plaintiff proves that the defendant exceeded the bounds of the privileged occasion.

Question 16

Which categories of privilege have crystallised?

Answer 16

1. Discharge of a duty or furtherance of an interest: 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. This must be ascertained by means of the reasonable person test.
   - If it is proved that both parties had a corresponding duty of interest, the defendant must further prove that he acted within the scope or limits of the privilege.
   - To do this, he must prove that the defamatory assertions were RELEVANT TO, or REASONABLE CONNECTED WITH the discharge of the duty pf the furtherance of the interest.
2. Judicial or quasi-judicial proceedings: Defendant need only prove that the statements were RELEVANT to the proceedings.
3. Privileged reports: publications of court, parliament and certain public bodies.

Question 17

Discuss ‘truth AND public interest’

Answer 17

1. If he proves that the defamatory remarks were true AND in the public interest.
2. Need only be substantially - and not literally - true.
3. What is in the public interest will depend on the convictions of the community, and the time, manner and the occasion of the publication play an important role.
4. Unlike in the case of privilege, the limits of this defence are not exceeded if the defendant acted with malice.

Question 18

Discuss ‘media privilege (reasonable publication of untruth)’

Answer 18

1. Concerns the reasonable publication of false or untrue defamatory statements by the media.
2. The legal convictions of the community of our country must be applied.
3. Several factors that are not meant to be complete or decisive can be considered:
   a. The public interest and not merely public inquisitiveness in the matter;
   b. The nature, extent and tone of the allegations;
   c. The nature of the information upon which the allegations were based;
   d. The nature of the mass medium used;
   e. The extent of distribution and sector of the public at which the publication is aimed;
   f. The reliability of the info;
   g. The steps taken to verify the info;
   h. The possibility that the same objective could be reached in a less harmful manner.

Question 19

Discuss ‘political privilege’

Answer 19

1. Analogous to media privilege and entails the reasonable publication of (false or untrue) defamatory allegations on the political terrain.
2. The factors playing a part are the same as with media, but with one exception: That the publication must be made with the reasonable belief that the statements made are true (Mail & Guardian case).

Question 20

Discuss ‘fair comment’ as a ground of defence

Answer 20

1. If the defendant proves that the defamation forms part of a fair comment on facts that are true and in the public interest.
2. There are 4 requirements:
   a. The defamation must amount to COMMENT and not to the assertion of an independent fact;
   b. The comment must be FAIR. What is fair is determined by the convictions of the community.
   c. The facts on which the comment is based must be TRUE
   d. These facts must be in the PUBLIC INTEREST

Question 21

Discuss ‘fault’ as an element of defamation

Answer 21

1. Negligence is as a rule insufficient to render the wrongdoer liable
2. Animus iniuriandi means “the mental disposition to will the relevant consequences, with the knowledge that the consequences will be wrongful”.
3. Although the plaintiff must expressly aver the existence of animus iniuriandi in his pleadings, he need not prove intent on the part of the defendant.
4. The burden of rebutting the presumption is placed on the defendant.

Question 22

What are the two grounds of defence for fault (intent)?

Answer 22

1. Mistake

2. Jest

Question 23

Discuss ‘mistake’ as a ground of defence against fault

Answer 23

1. If a person is unaware of the wrongfulness of his defamatory publication because he bona fide thinks or believes that his conduct is lawful, consciousness of wrongfulness, which is essential for intent, and thus intent, is absent.

Question 24

Discuss ‘mistake’ as a ground of defence against fault

Answer 24

1. If a person is unaware of the wrongfulness of his defamatory publication because he bona fide thinks or believes that his conduct is lawful, consciousness of wrongfulness, which is essential for intent, and thus intent, is absent.
   - This must be determined subjectively.
   - In the case of an unreasonable mistake, the defendant is held liable on the ground of his negligence.
2. If the 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, directing the will as essentially required is absent.
   - The courts do not follow this approach, they require that the reasonable bystander should also have regarded the words as a joke (Masch v Leask).

Question 25

Discuss negligence as it relates to fault

Answer 25

1. Negligence has, over the course of time, been accepted as the fault requirement for certain forms of defamation.
2. Liability based upon negligence has been recognised for distributors and sellers of printer matter containing defamatory matter.
3. There are judgments on the liability of the press for defamation recognising non-intentional but negligent mistake as ground for liability.

Question 26

What is dignity?

Answer 26

A person’s dignity embraces his subjective feelings of dignity or self-respect.

• Infringement consists of insulting that person.
• Since one is concerned with a person’s opinion of himself and not with the opinion of others, as with defamation, publication of the insulting behaviour to 3rd persons is unnecessary to constitute an iniuria; publication to the plaintiff alone is sufficient.

Question 27

What is required for dignity to be classified as wrongful?

Answer 27

The behaviour must infringe the subjective feelings of dignity (factual infringement of a legal object), AND at the same time also be contra bonos mores.

• If the plaintiff proves that he feels insulted in circumstances where the reasonable person would also have felt insulted, a presumption of wrongfulness arises, which the defendant may rebut by proving the existence of a ground of justification.
• If he does not succeed, wrongfulness is certain and a presumption of animus iniuriandi arises.

Question 28

Discuss the right to privacy

Answer 28

1. Privacy is an individual condition of life characterised by seclusion from the public and publicity, the extent of which is determined by the individual himself.
2. Privacy can only be infringed by unauthorised acquaintance by outsiders with the individual or his personal affairs.
3. There are 2 ways in which this may occur:
   a. When an outsider himself becomes acquainted with the individual or his personal affairs;
   b. Where the outsider acquaints 3rd parties with the individual or his personal affairs which, although they were known to the outsider, remain private.
   - Recording of private facts constitutes a threatening wrongful infringement of privacy.

Question 29

How is the wrongfulness of an infringement of privacy determined?

Answer 29

By the general test (boni more or reasonableness criterion).

Question 30

What are examples of wrongful invasion of privacy by INTRUSION?

Answer 30

• Entry into private residence
• Secretly watching a person in closed quarters
• Reading private documents
• Listening to private conversations
• Shadowing a person
• Taking unauthorised blood tests
• Improper interrogation by the police.

Question 31

What are examples of wrongful invasion of privacy by DISCLOSURE?

Answer 31

• Disclosure of private facts which have been acquired by a wrongful act of intrusion
• The disclosure of private facts contrary to the existence of a confidential relationship
• The publication of private facts by the mass media, including social media (Heroldt v Wills)

Question 32

Discuss the right to identity

Answer 32

1. Grutter v Lombard recognised this as independent right
2. Identity is that uniqueness which identifies each person as a particular individual and as such distinguishes him from others.
3. Identity manifests itself in various indicia by which the person involved can be recognised.
4. Identity is thus infringed if indicia thereof are used in a way that does not reflect the person’s true personality image.

Question 33

What are the 2 forms of wrongful identity infringement?

Answer 33

1. Public falsification of the personality image
2. Economic misappropriation of identity indicia (especially for advertising purposes)
   - The boni mores are still of prime importance (even though the American torts are influential)
   - The element of animus iniuriandi must be dealt with in same manner as infringement of dignity and invasion of privacy.