So far I’ve dealt with the following requirements in order to prove defamation: (1) reference to the plaintiff; (2) publication; (3) intention & wrongfulness.
The next requirement is that the statement/publication must be defamatory i.e. it must ‘lower the plaintiff in the estimation of right-thinking members of society generally’ (Mckerron). Compare that with the following: ‘If it is merely abusive it may well not be defamatory e.g. ‘low life fellow’ (Mann v Booker)
The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply.( ‘SOCIAL MEDIA: FREEDOM OF EXPRESSION OR ONLINE DEFAMATION?’ – Barnaschone Attorneys January 14 2016)
What is innuendo? Words may be used in two ways: the meaning may be apparent or a secondary meaning may be implied and it is this secondary meaning I am talking about. Accordingly, words that are not apparently (prima facie/on the face of it/first blush) defamatory may well fall into that category if the secondary meaning is applied/applicable. It is this secondary meaning that the plaintiff would have to ‘expressly and explicitly set out in his pleadings’ i.e. ‘the defamatory sense which he attributes to them’ (McKerron).
‘Generally, a court faced with such a decision will ask itself whether a ‘reasonable right thinking man or woman’ hearing or reading the words would think any less of you as a result. Only when the court is clear as to the meaning of the offending words can it decide whether or not they harmed your reputation – it is furthermore necessary that the that the meaning of the words must be determined in the context and circumstances in which they were used. Once the meaning of the words has been determined can the court decide if they actually damaged your reputation’ (Lawyer.co.za)
A statement is defamatory when it ‘reflects in the moral character of the plaintiff e.g. imputing to him untruthfulness, dishonesty or any other kind of dishonourable or improper conduct’ (McKerron)
Even if it does not fall squarely in the above category, it can still be defamatory if ‘..tends to bring (the plaintiff) into contempt or ridicule’ (McKerron)
Most of us are very active on social media and from time to time we’ll share information received – please read the following excerpt carefully:
‘Something is considered to be published not only by the person who originated it, but also by anyone who subsequently repeats it…. The allegation that someone is a rapist is undoubtedly defamatory in law. Both the people who originated it and those who shared or retweeted it are potentially liable’ http://www.research.uct.ac.za/defamation-law
This newsletter/article is intended to provide a brief overview of legal matters pertaining to captioned matter and is not intended as legal advice. As every situation depends on its own facts and circumstances, only professional advice should be relied on. Please contact Adv. Louis Nel at [email protected] or on +27 83 679 4556’