Tourism Tattler - - LEGAL -

What Must Be Proved & Who Has To Prove It (Bur­den Of Proof)? Be­fore I deal with the Terms & Con­di­tions (‘T&C') e.g. Face­book, etc, I think we need to get to grips with defama­tion and to do so we need to ‘un­pack' (1) the def­i­ni­tion I used in the first ar­ti­cle, (2) po­ten­tial dam­ages (claims) and then (3) the de­fences.

At a meet­ing of in­dus­try pro­fes­sion­als I re­cently at­tended the is­sue of defama­tion was dis­cussed and what was scary was the mis­con­cep­tions bandied about: not only about what con­sti­tutes defama­tion but what the de­fences are, so here we go!

If a party (‘A') al­leges he/she has been de­famed by another party (‘B'), A has to prove the fol­low­ing: (1) the state­ment must re­fer to A; (2) there must be pub­li­ca­tion/com­mu­ni­ca­tion to a third party; (3) B must have the in­ten­tion to de­fame A; (4) the state­ment must be wrong­ful; (5) the con­tent as such must be defam­a­tory; (6) the causal con­nec­tion (nexus) be­tween the state­ment and the dam­ages; and (7) dam­ages (quan­tum) e.g. loss of cus­tomers and the fi­nan­cial im­pli­ca­tions.

So let's look at each of these re­quire­ments that the party al­leges to have been de­famed must prove:

(1) The State­ment Must Re­fer To The Per­son Al­legedly De­famed This means that the so-called rea­son­able per­son when he or she hears the ver­bal or reads the writ­ten com­mu­ni­ca­tion, must know it is about or refers to the per­son al­legedly de­famed. It does not have to re­fer to that per­son by name – it can re­fer to that per­son by im­pli­ca­tion/in­nu­endo. The test the courts will ap­ply is an ob­jec­tive one.

This is highly rel­e­vant to state­ments about a group or sec­tor that may by in­fer­ence in­clude the plain­tiff – if the group is too ‘too large and dif­fuse', the plain­tiff may not suc­ceed. (Re­fer:

(2) Pub­li­ca­tion To A Third Party

This means the al­legedly defam­a­tory state­ment must be com­mu­ni­cated by the de­fen­dant (B) to a third party and not only to the party who al­leges to have been de­famed (A) i.e. ut­tered ver­bally di­rectly to a third party or spo­ken so loudly to A that it is in­evitable that the third party(ies) would hear it or is pub­lished in print me­dia (e.g. news­pa­per, news­let­ter), an e-mail copied to var­i­ous par­ties or that may in­ad­ver­tently reach non­in­tended party(ies) or any form of so­cial me­dia. This means the re­cip­i­ent must know or deduct that the per­son men­tioned, re­ferred or al­luded to is (A). Thus it has been held that ‘pub­li­ca­tion need not be in­ten­tional – a per­son may be held li­able even for the un­wit­ting dis­sem­i­na­tion of defam­a­tory mat­ter' (McKer­ron 185). It means you have to be ex­tremely care­ful not only about what you say but who you say it to, who you share it with and how you share it e.g. marked as ‘pri­vate, con­fi­den­tial and for the re­cip­i­ents' in­for­ma­tion only'.

‘Pub­lish' means al­most any form of com­mu­ni­ca­tion. It could be a spo­ken or writ­ten al­le­ga­tion or even a non-ver­bal state­ment like an im­age that's com­mu­ni­cated to at least one per­son apart from the plain­tiff. Some­thing is con­sid­ered to be pub­lished not only by the per­son who orig­i­nated it but also by any­one who sub­se­quently re­peats it. Clearly, the li­a­bil­ity for defama­tion is po­ten­tially very wide, a scope that re­flects the law's in­vest­ment in hu­man dig­nity and rep­u­ta­tion in par­tic­u­lar.

The al­le­ga­tion that some­one is a rapist is un­doubt­edly defam­a­tory in law. Both the peo­ple who orig­i­nated it and those who shared or retweeted it are po­ten­tially li­able. (Re­fer: re­­tion-law).

You may have heard the terms ‘li­bel' and ‘slan­der' – some coun­tries (but NOT South Africa) still dif­fer­en­ti­ate be­tween these two forms of defama­tion i.e.

• Li­bel is defam­a­tory state­ments and/or pic­tures pub­lished in print or writ­ing; or broad­cast in the me­dia, such as over the ra­dio, on TV or in film;

‘Slan­der' is an oral defam­a­tory state­ment.

The test is ob­jec­tive and as stated in the first in­sert even ‘body lan­guage or hand ges­tures' can con­sti­tute pub­li­ca­tion! (Abrahams & Gross). Here's a dras­tic ex­am­ple: Maung Saungkha is a poet turned ac­tivist who served prison time over a satir­i­cal poem he posted on Face­book in 2015. ‘He posted a satir­i­cal poem on Face­book two years ago that was deemed by a court to be an in­sult to the pres­i­dent of Myan­mar. The poem named no names, but it colour­fully im­plied that Saungkha has a tat­too of the pres­i­dent on his pe­nis. He was ar­rested and hauled off to prison, where he served six months for crim­i­nal defama­tion' (Re­fer: fast­com­ More about this and el­e­ments that com­prise proof of defama­tion, namely in­ten­tion and wrong­ful­ness, in the Novem­ber edi­tion.

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