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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2014-11-28
In broad terms defamation may be defined as the intentional and wrongful publication of a statement which causes harm to another person's name, reputation and dignity. Basically this means saying something insulting and degrading to someone else about another causing damage to that person's name and reputation.

In law, the word publication has a specific meaning and thus is not restricted to the general meaning we may understand it to be. It simply means that the defamatory statement was read or heard by someone else. In the context of online defamation this would include all social network platforms, such as Facebook, Twitter, MySpace, as well as websites, blogs, chat rooms or online forum discussions.


In order to prove a defamatory statement, you would need to prove 3 things namely that :-

  • the statement itself was defamatory;
  • it was published;
  • it referred to the complainant.

To succeed with a defamation claim, you have to prove publication. Publication takes place at the place where the message content is communicated to the reader or listener. There's a presumption of publication where a defamatory message has been sent to a chatroom on the Internet since it's understood and indeed expected that other people will read it. Generally there are no laws of privacy provided to "chatrooms" on the Internet.


There are a number of judgments and rulings in our South African courts which illustrate that the courts have taken the view that a person's right to dignity and protection of one's reputation must take precedence over another person's right to freedom of expression. This right is considered as being of "foundational constitutional value" to a person.

Constitutional Court Judge O'Regan said that in democratic societies the law of defamation "lies at the intersection of the freedom of speech and the protection of reputation or good name. "Although freedom of expression is fundamental to our democratic society, it is not a paramount value.It must be construed in the context of the other values enshrined in our constitution. In particular, the values of human dignity, freedom and equality."

The courts will look at each individual case when evaluating this right of an individual. If a comment which may be considered defamatory is made on any social media platform or in fact in any public domain, this could result in a defamation claim being brought against the person who made that comment.

Thus posting a defamatory comment or tweet online, as well as indicating a "like it" post or "re-tweeting" the defamatory comment to others within their social network group, will also be considered defamatory.

Know your rights! The Law Desk of Fawzia Khan & Associates. We Know! We Care! We Deliver! Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.