The law of south africa dictionary defines defamation as a statement that has the effect of injuring a plaintiffs reputation. He is a partner at a leading law firm in johannesburg, south africa, where he specialises. Apr 10, 2018 our attorneys provide details about recourse for defamation with claims arising primarily from the use of social media in south africa. In south african law there are three defences most commonly used to justify a defamatory claim, namely. Defamation defamation defamation is defined as the action of damaging the good reputation of someone.
Examines the highly topical and controversial issue of balancing freedom of speech and the media with the right to reputation. Emma sadleir is south africas leading expert on social media law. Prominent south african lawyer, advocate gilbert marcus, has urged the constitutional court to strike down the criminal defamation law, saying it has the chilling effect of muzzling the press in. Promoting hate speech on facebook in 2015, the south african human rights commission sahrc accused sunette bridges, an afrikaans music artist, of hosting racial commentary on her facebook page. This site is like a library, use search box in the widget to get ebook. Defamatory refers to any allegation that would tend to lower the plaintiffs in this case the 11 mens standing in the eyes of rightthinking people. The author holds a doctorate in defamation, privacy and free speech law from university college london, as well as two masters degrees in media and communications law, and in corporate law and human rights law. South africa in south africa, even though criminal defamation is sparingly used, it is clear that the presence of the law on the statute book has a chilling effect on a number of those journalists who are aware of it. South african libel law is very similar to our own.
It discusses or refers to hundreds of cases from those jurisdictions, as well. Apr 22, 2016 where south african defamation law stands on naming and shaming. The law of defamation in south africa jonathan mark. There are many books about freedom of speech but there are very few that deal. Many of my colleagues who deal in civil litigation matters have also reported a similar trend in defamation litigation.
In the united states, someone suing on the grounds of libel has to. The law assumes that all people are of good character until the opposite is proved in a court of law. First published in 1998, this book is an exposition of the law of defamation as it applies in those countries excluding south africa. There are several ways to defend a defamation claim in south africa. In fact the applicants did not rely upon any justification ground. The list was then distributed on websites, facebook and twitter. Foundations of the south african law of defamation. Where south african defamation law stands on naming and. Volume 128, issue 2, 2011 south african law journal volume 128, issue 2, january 2011 navigate this journal. Additionally, the chapter in mckerrons book the law of delict 7 ed dealing with defamation in south africa is a useful reference as it states the south african.
England and wales, the european court of human rights, south africa, australia, and the usa. However, as substantial differences exist between south african and zimbabwean law arising out of differing approaches to the concept of animus injuriandi, care should be taken in relying upon this south african text. South african law journal volume 128, issue 2, january 2011. Cape town, south africa defamation, libel and slander. Emma sadleir the digital law company by emma sadleir. Freedom of speech and the law of defamation strauss daly. In the uk, chris cairns, a new zealand cricketer, won a law suit against lalit modi, the former chairman of the indian premier. Clearly punishment and deterrence are functions of the criminal law, not the law of delict.
In south africa, as in england, the onus is on the defendant wishing to avoid liability for defamation by relying on justification has a full onus to plead and prove facts. It shows how defamation law has been used in some countries to suppress speech and limit access to. However, we are of the view that this does not mean that an attorney simply has carte blanche to publish defamatory material without taking some measures to test the veracity thereof. In general, a civil court, in a defamation case, awards damages to solace plaintiffs wounded feelings and not to penalise or to deter the defendant for his wrongdoing nor to deter people from doing what the. The number of instructions our firm receives for online defamation matters continues to grow at an astonishing rate. Everyday experience demonstrates that a caricature or cartoon can be more devastating to the image of the victim than, say.
It discusses or refers to hundreds of cases from those jurisdictions, as well as many important precedents from. The law of defamation in south africa burchell, jonathan m on. There is something about internet websites and social media platforms like facebook and twitter that seem to bring out. In south african law the wrong of defamation is committed whenever anyone publishes a defamatory statement about another living person. The supreme court of appeal of south africa judgment not. The law of defamation in south africa unknown binding 1985 by jonathan m burchell author. Click download or read online button to get foundations of the south african law of defamation book. In the sphere of communications and media law, the book is everything that the title says it is a practical guide to media law. The question is whether a given statement was calculated to expose a person to hatred, contempt or ridicule. Having looked at articles on the situation and case law in south africa, it seems to me that we can summarise our law as follows. Truth and in public interest public benefit the defamer must prove that the material is substantially true and that the public has an advantage or legitimate interest in the material.
Law of defamation in commonwealth africa by jill cottrell. In south africa there are constant threats of harm to persons or their property by veld, forest. If you have more questions, check your local law library or the defamation law section of nolo s website for more about the first amendment and freedom of speech, the rights and responsibilities of the press, invasion of privacy, hate speech, and internet speech. In the sphere of communications and media law, the book is everything that the title says it is a practical. Read, highlight, and take notes, across web, tablet, and phone. The tension between free expression and defamation laws. Apr 06, 2011 in south africa, as in england, the onus is on the defendant wishing to avoid liability for defamation by relying on justification has a full onus to plead and prove facts. Foundations of the south african law of defamation download. This is where south african defamation law stands how. The company she founded three years ago, the digital law company, specialises in educating and advising corporates, employees, schools. The supreme court of appeal of south africa judgment not reportable case no.
The company she founded three years ago, the digital law company, specialises in educating and advising corporates, employees, schools, parents, teachers, and universities on the legal, disciplinary and reputational risks of social media. Click download or read online button to get foundations of the south african law of defamation book now. The law of defamation protects individual reputation. Nov 02, 2012 the law of south africa dictionary defines defamation as a statement that has the effect of injuring a plaintiffs reputation. Proving defamation of character in south africa, the onus of proof lays on the person claiming that defamation has taken place to prove same along the lines set out above. How do you proof defamation and what is your right to recourse in terms of south african law. Social media use has led to numerous law suits both in south africa and abroad. Media 24 limited ta daily sun first appellant themba khumalo. A defamatory statement must be made known to at least one person other than the defamed individual.
Slander is the crime of making a false, spoken statement damaging a persons reputation. Get your south african law questions answered by experts. Where south african defamation law stands on naming and shaming 26 april 2016 story newsroom. In my book of life i am a south african citizen, in his book. Your right of recourse for defamation of character.
Jul 14, 2016 your right of recourse for defamation of character by barry on july 14, 2016 in publications, civil litigation and alternative dispute resolution defamation of character claims can be tricky, as our courts always try to preserve freedom of expression as enshrined in section 16 of our constitution. Discusses and compares the law in five jurisdictions in detail. The south african supreme court of appeal ruled on the question of whether strict liability. Johannesburg high court rules on facebook defamation web. The author holds a doctorate in defamation, privacy and free speech law from university college london, as well as two masters degrees in media and communications law, and in corporate. Defamation and crimin injuria south african pagan rights. He is a partner at a leading law firm in johannesburg, south africa, where he specialises in media and entertainment law. Pretoria, for an alleged defamation and claimed damages in the sum of r500 000. Some people refer to this phenomenon as libel or even slander but the correct term in south african law is defamation. Additionally, the chapter in mckerrons book the law of delict 7 ed dealing with defamation in south africa is a useful reference as it states the south african law prior to the subjectivisation of animus injuriandi, which subjective. If defamation is part of the criminal law, the criminal standard of proof beyond a reasonable doubt should be fully satisfied. Many defamation laws originated as part of the criminal law of the state. The law of south africa dictionary defines defamation as a statement that. An example of crimin injuria would include verbally insulting or abusing, stalking, or threatening to harm someone, or making known a persons privileged or private information without.
Nov 15, 2017 currently in south africa there is no case law dealing with this particular set of facts. The law of defamation in south australia is largely governed by the common law, supplemented by the defamation act 2005 sa. What constitutes as defamation of character under the south african law and how do you prove it. Jun 15, 2010 what constitutes as defamation of character.
The common law elements of the delict of defamation are a the wrongful and b intentional c publication of d a defamatory statement e concerning another person2. Aug 08, 2017 crimen injuria is a crime under south african common law, defined as the act of unlawfully and intentionally impairing the dignity or privacy of another. Defamation in the law of south africa and ceylon book. Find law firms in south africa to help you with your defamation, libel and slander case. This book details advances that have been made in 1990 arising from the changed political dispensation and the tremendous advances in technology. However, formatting rules can vary widely between applications and fields of interest or study. The leading textbook on this subject is burchell the law of defamation in south africa. In terms of south africas defamation law, a line is drawn between media defendants and regular defendants in defamation cases. As english law has heavily influenced our law in the field, reference should be made to english texts. Social media, defamation, delict, defamatory statement, south africa, freedom of speech.
South africa in south africa, even though criminal defamation is sparingly used, it is clear that the presence of the law on the statute book has a chilling effect on a number of those journalists who are. If someone damages your reputation by way of slander or libel, you may have grounds to sue for defamation. The law of defamation in south africa paperback author. Defamation is the wrongful and intentional publication of defamatory words or conduct that refers to another person. Protecting reputation without infringing free expression september 11, 2012 this paper examines the relationship in the online context between the right to free expression and defamation law. Additionally, the chapter in mckerrons book the law of delict 7 ed dealing with defamation in south. A plaintiffs reputation is injured if the statement tends to lower the plaintiff in the estimation of rightthinking members of society. The first south african case involving defamation via social media was heroldt v wills 20 2 sa 530 gsj, where an interdict was sought against the. There are also some indications that the intimidating effects extend beyond the fear of a criminal conviction. In south african law, the onus of proof is on the person claiming that an act of defamation has occurred and he or she must submit proof that the. Reliable information about the coronavirus covid19 is available from the world health organization current situation, international travel. The first south african case involving defamation via social media was heroldt v wills 20 2 sa 530 gsj, where an interdict was sought against the defendant for a facebook post suggesting that the plaintiff was not a proper man for allegedly failing to care for his daughters because of the alcohol, the. In general, a civil court, in a defamation case, awards damages to solace plaintiffs wounded feelings and not to penalise or to deter the defendant for his wrongdoing nor to deter people from doing what the defendant has done. Where south african defamation law stands on naming and shaming.
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