INFRINGEMENT OF REPUTATION Flashcards
What is the law of defamation mostly concerned about?
It is concerned with protecting a person’s reputation against any unjust attack.
Reputation refers to…
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
Claim instituted against the infringement to right to reputation
Actio iniuriarum
Distinguish between Reputation and Dignity
Reputation- what others think of you
Dignity- what a person thinks of themselves
Definition of Defamation
It is the wrongful and intentional publication of defamatory material that refers to the plaintiff
True or False: True defamatory words are also actionable
True
The defamatory material must…
- reach someone other than the person who is being referred to
- be likely to damage a person’s reputation by having the propensity to lower the person’s good name and standing in public
For liability to arise…
There must be a factual violation of the right to reputation
The plaintiff must prove…
- the material was defamatory
- referring to the plaintiff
- was published
Two rebuttable presumptions
- Wrongfulness
- Intention
The onus rests on the defendant to disprove
Who can sue?
- Natural persons
- Artificial persons under restricted circumstances
- Non-trading corporations
- Political Parties and trade unions u.r.c
- Government officials in their personal capacity and not as the Government itself
There is publication when…
the defamatory material is disclosed to at least one other person who is not the plaintiff
No publication= claim for infringement of dignity
The third party must…
be aware, understand and appreciate the meaning of what is being conveyed
Pieterse v Clicks
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
Who may be sued?
Everyone who contributed to the publication. Anyone who repeats, confirms or even draws attention to the defamatory material.
Types of defamatory material
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
Isparta v Richter 2013
Defamation on Facebook
Damages awarded
Tagging
- defendants did not want to say sorry
True or False: Intermediaries(middle man) eg Postal services are held liable
False
Under which conditions shall the republisher be held liable?
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
Untended communications issue:
whether courts should attribute the communications to the defendant.
Unintended communications principle:
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.
Unintended communications case law
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
The communication requirements
- Positive conduct in a form of a direct message
- Positive omission- failure to remove the defamatory material
The communication Rebuttable presumptions
- distribution to public
- words spoken within earshot of others
- material appears on postcard
RM v RB
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
Exceptions to defamatory material
Privileged communications b/w spouses and client-attorney are protected
Determining what constitutes a defamatory material
- meaning of words/conduct
- whether meaning is defamatory
- reference to plaintiff
- Meaning of words/conduct
- Primary meaning= ordinary
- 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
- Secondary meaning= hidden/innuendo; understood by communicator and communicatee
- Quasi-innuendo= nothing to do with meaning of material but more with whether the meaning of the words bear is more defamatory
- additional sting
-
Reasonable listener/reader/viewer test
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
- Whether meaning is defamatory
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?
Defamation case law: Slim v Stretch
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
Defamation Case law: Le Roux v Dey
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
- Reference to the plaintiff
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
Wrongfulness Presumption
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
Wrongful presumption Court
Court balances b/w two rights:
1. plaintiff’s right to reputation
2. defendant’s right to freedom of expression
Intention presumption
Presumption of intention unless proved otherwise by defendant
1. direction of defendant’s will
2. defendant’s knowledge of wrongfulness of one’s conduct
Defamation case law: Modiri v Minister of Safety + security
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
Grounds of justification associated with infringements of personality interests
- Truth for public interest
- Fair comment
- Privileged occasion
- Reasonable publication
- Truth for public interest
