Partner - Webber Wentzel
Defamation, Privacy and Data Protection
Contributor: Dario Milo (Partner, Webber Wentzel)
The primary object of defamation law is to seek a balance between the protection of reputational rights and freedom of expression, by permitting justified expression and compensating individuals where the expression cannot be justified.
Individuals and corporations may sue for defamation, but government bodies are precluded from suing. Anyone involved in the chain of publication may be sued – both primary publishers (such as journalists, editors and the media house publishing the content) as well as secondary publishers such as booksellers and distributors.
The remedies in defamation law include (albeit rarely) obtaining a pre-publication injunction (or interdict), or (more commonly) seeking damages against the publisher after publication. Other remedies for defamatory speech include permanent injunctions against repetition of the statements found to be defamatory, a declaration of falsity, and an apology or retraction.
In South African law, ‘defamation’ is a delict (tort) and is defined as the unlawful and intentional publication of defamatory matter concerning another which causes reputational impairment.
Where the media is concerned, ‘defamation’ can be more narrowly defined as the unlawful, negligent publication of defamatory matter concerning another which causes reputational impairment.
The elements of defamation, all of which must be proven by the plaintiff on a balance of probabilities, are the following:
(i) there must be publication (ie making known the publication to third parties)
(ii) the matter published must have a defamatory meaning
(iii) the defamatory matter must refer to the plaintiff.
When looking at the defamatory meaning of the matter published, the analysis is done by way of a two-stage approach.
(1) The first stage is to establish the ordinary meaning of the words used and the second stage is to establish whether the meaning of defamatory
(2) A statement is defamatory “if it is likely to injure the good esteem in which he or she is held by the reasonable or average person to whom it had been published.”
The last element is that the plaintiff must prove that defamatory matter refers to them. The objective test poses the question of whether the words are reasonably capable of conveying to the ordinary reasonable reader that the defamatory material applies to the plaintiff.
In defamation proceedings, once the plaintiff proves that the defendant has published defamatory material which refers to the plaintiff, two presumptions arise; namely, that the publication is unlawful, and that the defendant acted with the intention to defame the plaintiff.
To succeed in defending the claim, the publisher must then rebut one or both of these presumptions, by raising one or more of the defences. If the publisher is unable to prove a defence, the plaintiff will succeed in their claim. The traditional grounds of lawful justification are as follows:
(i) the statement was true and published for the public benefit or in the public interest;
(ii) the statement was protected comment (previously known as fair comment), being made upon facts which were true, and which are matters of public interest;
(iii) the statement was protected by privilege, including qualified privilege (eg because it was made in the course of a fair and accurate report of the proceedings of a court, Parliament or a public body);
(iv) for the media, in all the circumstances in which the statements were published, it was reasonable for the media to have published them. This defence is presently only available to the media
(v) for secondary publishers, the defence of innocent dissemination applies.
All cases in South Africa are decided by judges and not juries.
Aside from being a basis for a civil law suit, defamation can also lead to a criminal prosecution.
In Hoho v S the Supreme Court of Appeal confirmed that the common law crime of defamation still exists in South African law and defined it as ‘the unlawful and intentional publication of matter concerning another which tends to injure his reputation.’
The principle difference between civil defamation and criminal defamation is that in order to obtain a conviction on a charge of criminal defamation, the State must prove all the elements of the offence beyond reasonable doubt and not merely on a balance of probabilities.
Although a person charged with criminal defamation can raise all of the same defences as in a civil case, there is no onus on the accused to disprove his or her guilt; the onus remains on the state to prove guilt beyond a reasonable doubt.
An invasion of privacy can occur in one of two ways, namely, either through an unreasonable intrusion into or interference with a person’s private sphere; or through unauthorised disclosure of private facts. An invasion of privacy, besides constituting a civil wrong, can also constitute a criminal offence, such as crimen injuria or trespassing, or a breach of a certain statute.
An example of an unlawful intrusion into another’s privacy is section 86 of the Electronic Communications Act, which provides that a person who intentionally accesses data without authority or permission is guilty of an offence. The penalty is a fine or imprisonment for a period not exceeding 12 months. There is a more severe penalty of five years for the offence of using a computer program or device in order to unlawfully overcome security measures designed to protect the integrity of data.
The following are examples of invasions of privacy through intrusions or interference:
(i) intercepting, monitoring and recording of communications
(ii) surveillance, stalking, or harassment
(iii) entering a private home
(v) searching a person
(vi) interrogation of a person
(vii) ‘hacking’ or gaining unauthorised entry to a computer
The general defences or grounds of justification to an action for invasion of privacy are truth for the public benefit (often referred to as the ‘public interest defence’), and consent.
(i) Regarding the public interest defence, the focus is usually on whether the disclosure of the private facts was for the public benefit or in the public interest. The public interest justification may either be because the private facts relate to a public figure (though that will not in itself be sufficient to show public interest) or because disclosure of the private facts is in the public interest.
(ii) Regarding the consent defence, an individual may consent to the disclosure of private facts either expressly or impliedly.
Where the publication of private facts has already taken place, the primary remedy available to a claimant is a claim for an award for damages. Where publication has not yet taken place, an applicant may apply for an interdict restraining publication of the private facts.
One may institute legal proceedings for defamation and privacy within 3 years from which the plaintiff becomes aware of the defamatory statement and publication (or intrusion, in the case of privacy by intrusion) thereof. After this period, the claim will prescribe, meaning that the claim cannot be brought as it would be time-barred.
In South Africa, jurisdiction of lower courts is determined largely by monetary value of a plaintiff/applicant’s claim. Defamation proceedings where the plaintiff claims above ZAR400 000 must proceed in the High Court.
The onus of proof in these cases rests in the first instance with the plaintiff who is required to prove all the elements of defamation. If he or she proves the defamation, the onus will shift to the defendant to prove a defence. If the plaintiff is successful and defamation is proved, the court will grant an order in their favour. The losing party in these matters is usually ordered to pay the costs of the suit which are calculated according to a court tariff.
(i) When it comes to damages, the court may order the defendant to pay damages to the plaintiff for impairment to his/her reputation. These damages are often referred to as a ‘general damages’, in contrast to ‘special damages’, which a court may award to a plaintiff where there is proof that the defamation caused patrimonial loss. Damages are calculated on the basis of the harm done to one’s reputation. One does not have to prove any actual loss. Nor is there any type of scale for such damages. The assessment will depend largely on the views of the judge, who is guided by previous awards in similar cases and other factors, such as malice and the nature and extent of the publication, the presence or absence of adequate apology and the rank and social status of the party whose reputation was allegedly damaged.
(ii) There is no set maximum amount of damages that a court will order but the general bracket of damages awards in recent years for publications to the public is between ZAR200 000 and ZAR500 000.
The Protection of Personal Information Act (POPIA) aims to promote the right to privacy in the Constitution of the Republic of South Africa, while protecting the flow of information.
(i) The rationale for POPIA is to give full effect to the constitutional right to informational privacy, which is a distinct element of the right to privacy protected in terms of the Constitution. POPIA provides substantive content to this right, by establishing a threshold of minimum conditions for the processing of personal information and providing individuals with rights and remedies to protect their personal information.
(ii) POPIA establishes the rights and duties that are designed to protect personal data. In terms of POPIA, the legitimate needs of organisations to collect and use personal data for business and other purposes are balanced against the right of individuals to have their right of privacy, in the form of their personal details, respected.
(iii) POPIA applies to a particular activity, i.e. the processing of personal data, rather than a particular person or organisation. POPIA sets out a number of data protection principles which must be complied with.
(iv) POPIA will apply to every person who processes the personal information of another, with certain specific exclusions. Significantly for the media, the processing of personal information which takes place solely for the purpose of journalistic endeavours is excluded from the ambit of the POPI. In order to fall within this exclusion though, journalists must belong to a professional body that provides adequate safeguards in its code of conduct for the protection of personal information.
Contributor: Dario Milo (Partner)
90 Rivonia Road
The material in this Guide is for general information only and does not constitute legal advice.
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