A neighbour is spreading rumours about you within the neighbourhood and the rumours are spreading like wildfire. You are tempted to confront them and “fight it off” but you know taking the law into your own hands can work against you ultimately.

Defamation amounts to a statement that is made or published with the result of injuring/ damaging the good reputation of another person. In emphasis, the statement must be one that can actually be proven to have damaged the good name and standing of another person.

The courts however exercise a great deal of discretion in deciding defamation cases as a balancing act need to be put in place with the right to freedom of expression as enshrined in Section 16 of the constitution on one hand, and the right to untainted reputation on the other to what society expects as acceptable.

The Plaintiff will need to prove the following in order to be successful in a defamation claim;

Wrongful statement (i.e. unlawful). The plaintiff must be in a position to prove that the statement made against him/her was wrongful with regards to what the broader community or the law regards as acceptable. As alluded to above, the balancing act of freedom of expression and the right to a good name will have major emphasis here. It must also be noted that these rights are amenable to limitation as no right is absolute.

The statement was deliberate/intentional. The plaintiff must also prove in the circumstances that the wrongful statement was made with the deliberate appreciation that it will damage the other person’s reputation. Thus, if the statement was made under duress then the claim can fall on this basis as it was not intentional.

The statement must have been ‘published.’ In this sense publishing means the communication of the statement to another person which can be done either in writing, verbally, gesticulations or body language. It follows that the crux of a defamation claim comes into play when the statement/conduct complained about has been communicated to another/others, without which the claim cannot be sustained at all.

What if the defamation claim has been brought against you, how do you successfully defend it?

Privilege is a defence that you can use to successfully defend a defamation claim. In this case it does not matter whether the statement was true or not but it must be proven that the circumstances under which the statement was made are privileged. In order to prove privilege there must be some kind of relationship between the person making the defamatory statement and the hearer e.g. attorney-client. The other defence is fair comment, whereby one can show that the statement made was genuine opinion backed by fact, even though it indeed had defamatory connotations. The backing incidence of fact must then show that the comment was fair under the circumstances. This is especially found in lawsuits brought against journalists and news outlets. Lastly, the statement must be shown to be true and for public benefit/interest. The fact that the public has an interest in the matter is not enough, it must also be shown that it is in the interest of the public to publish the information thus, it ought to have been published.