Naming-and-shaming and its position in South African Law
As the ever-growing popularity of social networking and media platforms continue to expand our digital culture and make the world a smaller, more accessible place insofar sharing of information and communication is concerned, the trend of “naming-and-shaming” continues to proliferate as a tactic to publicly disgrace, expose and discredit.
But beware the strike that this double-edged sword of social justice can potentially deliver in terms of South African Law. Naming-and-shaming for all intents and purposes, is a defamation lawsuit waiting to happen…
What exactly is defamation?
Defamation (sometimes referred to as slander) is a common law claim that can be described as the unlawful and intentional publication of a defamatory statement concerning another party which has the effect of lowering the good reputation of the party who has been defamed.
What elements are needed to prove defamation?
In order to prove that the statements made are of a defamatory nature, the Victim needs to show that the statements were intentional, wrongful (unlawful), that the statements referred to the Victim directly and lastly, that the statements were published by the Perpetrator. In order to better understand these elements, they will be discussed in more detail below:
1. Defamatory statements:
The statements or remarks must be offending words that harmed the Victim’s reputation. The test in order to determine whether the Victim’s reputation has been harmed is whether the reasonable person would think less of the Victim as a result of the offending words. Bear in mind that this reputation also extends to a business reputation and is not merely limited to the character of a natural person.
The Perpetrator perpetrating the offensive words must have firstly, intentionally focussed his or her will on damaging the Victim’s reputation and secondly, the Perpetrator must have known that the offensive words were wrongful and unlawful and will cause harm to the Victim’s reputation.
In order to determine the element of wrongfulness, the offensive words must have been made contra bonos mores, simply meaning that the statements must be wrongful in the eyes of the broad public and therefore considered as unacceptable.
4. Reference to the Victim:
In order to prove defamation, the Victim will need to prove that the defamatory words were aimed at him/her directly – in other words the statements must have specifically mentioned the Victim.
For a claim of defamation to succeed, a third party must have heard or read the remarks such as on a Facebook post or the like.
Defences that can be used as justification for defamation claims
1. Truth and public interest:
In order to rely on this defence, the Perpetrator must prove that the defamatory statements are substantially true, and that the public has a legitimate interest or advantage in these statements
2. Fair Comment:
This defence protects the right of the Perpetrator to honestly express his/her opinion as contemplated in the Right to Freedom of Speech.
3. Privileged occasion:
Here the relationship between the person making the statement and the person to whom the statement was made comes into operation, e.g. an attorney-client relationship, where the statement would be, by nature of the relationship, confidential.
Defamation is one of the more complex and uncertain branches of South African law due to the balancing of conflicting Constitutional rights insofar the Victim’s dignity and privacy is concerned, against the Perpetrator’s right to freedom of expression and the limitation of these rights.
It therefore becomes rather elementary to see that in most instances naming-and-shaming fulfils all the necessary requirements to institute a claim for defamation against the person who has made the statements. However, whether a valid defence exists will always depend on the circumstances of each matter and this is where the waters become murky, due to the complexity of this branch of law.
It is thus imperative to rather err on the side of caution before engaging in a naming-and-shaming campaign. If the need arises to address a perceived injustice, rather seek professional legal assistance or contact an appropriate authority to report the incident to prevent having to potentially defend against a costly defamation lawsuit.