Defamation and crimin injuria
Defamation is defined as “any unlawful, intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.”
An example of defamation might be an article published on a blog or on Facebook that accuses a person of acting unethically or dishonestly, or of having committed a crime such as fraud, even if the person’s conduct did not constitute unethical or dishonest behaviour, or the person has not been found guilty of committing any crime.
Defamation includes both written statements (libel) and spoken statements (slander). Telling a group of friends on Facebook that someone has acted unethically, dishonestly, or has committed a crime – naming and shaming – also constitutes defamation.
A defamatory statement must be made known to at least one person other than the defamed individual.
The law of defamation protects individual reputation. The law assumes that all people are of good character until the opposite is proved in a court of law.
A civil action for defamation may result in a court granting an order requiring that the defamatory statement/s be removed, whether published on a website, blog, or anywhere else on social media. The order would also prohibit all future re-publication of these statements. Anyone in breach of such a court order (ignoring a court order) may be found to be in contempt of the court order and could be prosecuted.
Consult an attorney in order to determine whether or not you have cause to initiate a civil action against defamation.
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.”
An example of crimin injuria would include verbally insulting or abusing, stalking, or threatening to harm someone, or making known a person’s privileged or private information without their prior consent. Ridiculing someone’s ethnicity using racially offensive language, or ridiculing someone’s religious affiliation, sexual identity or sexual preference, may constitute crimin injuria, especially where such ridicule causes emotional or psychological harm to others.
An action against crimin injuria begins with lodging a complaint against the injuria with your nearest police station. The police will investigate the allegation and if sufficient evidence can be found to support an allegation of injuria, a prosecutor will initiate trial proceedings against the perpetrator for crimin injuria.
A guilty judgement for crimen injuria may result in a first offender being sentenced to a fine and a suspended sentence for a period on condition that the offender does not re-offend. Contempt of a court order, or re-offending, may result in imprisonment. A person found guilty of crimin injuria will, once convicted, have a criminal record.
Note: One need not choose either civil or criminal action. If published libel causes emotional or psychological harm, both civil and criminal action can be initiated against the perpetrator.
Removing defamatory content from a blog
The Internet Service Providers Association (ISPA) offers a free and relatively easy way to remove defamatory content from websites and blogs, hosted in South Africa. This process is known as a ‘take-down notice’, and enables an offended party to report any unlawful content on any website or blog hosted by an ISPA member, and where necessary, to have that content removed.
SAPRA ‘Your Rights’ Resource