Tips from Louis the Lawyer – Social media and defamation

ONE of the much-debated
conditions required to
prove that defamation has
occurred includes proving
that the alleged ‘defamer’
had the intention to defame.
The test on this case is
subjective. In other words,
the defendant (publisher or
person who utters the vexed
words or statement) must
realise the impact on the
plaintiff’s reputation. If the
plaintiff argues that is was a
mistake or an honest belief
that was justified, this may
be a defence.
Proof must also be
provided that the defendant
knew that what they
were doing was wrongful
or unlawful and that
the plaintiff could lose
customers.
Courts will sometimes go
beyond intention and find
negligence or recklessness
are adequate for this proof
if it can be deduced that
the defendant acted with
disregard and should have
been aware of the possibility
of defamation occurring.
The court may also find
that intention is implied or
inevitable as was done in
the case of le Roux v Dey
(CC 2011) i.e. “A defendant
who foresaw the possibility
that his attempt at humour
might be defamatory of the
plaintiff, but nonetheless
proceeds with the attempt
will have animus iniuriandi
or intent in the form of dolus
eventualis.”
Furthermore the required
intention must be placed
in context. For example,
stating that ‘Joe is a jerk’ is
an opinion but stating that
Joe stole $1 000 from his
employer is a statement of
fact. If this statement isn’t
true it could be considered
defamatory as it could
cause injury to Joe and
cause him to be fired.