SPECIFIC FORMS OF INIURIA (Personality Infringement) – Chapter 30
Physical Integrity
Good Name
Consequence
Study Unit 30 - The right to physical integrity; the right to a good name or fama; rights relating to dignitas
30. The right to physical integrity; the right to a good name or fama; rights relating to dignitas
Defamation
• The intentional infringement of another person’s right to his good name
• Defamation is the wrongful, intentional publication of words or behaviour concerning another person which has
the effect on injuring his status, good name or reputation
• Elements of this iniuria; the act, an injury to personality, wrongfulness and intent
• True defamatory words can also be actionable
Elements:
1.Publication (act)
• Defamation will arise only if disclosed to 3rd person (because relates to opinion of others concerning person), dws
publication is necessary
• Dws only needed to disclose is to at least 1 other person (other than plaintiff himself)
Qualifications:
• Not considered publication if disclosure made to outsider unaware of the meaning/defamatory character thereof
irt plaintiff
• Communication of such defamation concerning 3rd party from one spouse to another, does not constitute
publication
• Once publication established, plaintiff must prove that defendant was responsible for the publication.
• Question is whether result was foreseen/reasonably foreseeable
• Not only origin of defamation, but also persons repeating it, are responsible for its publication
2.Defamatory effect: wrongfulness/unlawfulness (infringement of personality right/defamatory effect)
• Wrongfulness lies in infringement of person’s right to his good name
• Question of whether good name has in fact (factually) been infringed is irrelevant
• Question should rather be (objectively) if the reasonable man is of the opinion that the reputation has been injured
– embodiment of boni mores criterion
Principles applicable here ito reasonable person test:
• Reasonable/normal/fictional/well-balanced/right-thinking person, with normal emotional reactions, not
oversensitive or hyper-critical
• Someone who subscribes to norms/values of Constitution
• Member of society in general, and not of a specific group
• Reaction of reasonable person dependent on circumstances
• Verbal abuse is not defamation (doesn’t injure good name)
• Words/behaviour are prima facie defamatory or not – but may even in secondary meaning be defamatory
(innuendo) – primary and secondary meaning ascertained objectively bmo test
• Ambiguous meaning – follow one most favourable to defendant
Grounds of justification (5)
• Plantiff proves defemation = prima facie proof of wrongfulness
• Defendant has onus to rebut + prove justification
Law of Delict – PVL 3703 – Second Semester – 2011 Page 51
, 1.Privilege or privileged occasion: Privilege
• Someone has right/duty to make certain defamatory assertions (to injure another’s good name)
• Absolute privilege (regulated by statute): Liability completely excluded
• Eg members of parliament having complete freedom of speech during debates
• Relative privilege: Only conditional protection – It falls away as soon as plaintiff proves defendant exceeded the
bounds
Duty discharge or interest furtherance
• Legal duty
• Social/moral duty – reasonable person test
• Legitimate interest
• Other person has corresponding duty to learn of the assertion
• Defendant must prove he acted within the scope/limits
• Plaintiff may still show he has malice
Judicial/quasi-judicial proceedings
• Applies to all participants
• They enjoy provisional protection
• Two grounds: relevance and reasonable grounds – absence of one = limits exceeded
• But plaintiff may still prove excess ito malice
Privileged reports
• Court/parliament/public body proceedings’ publications
• Must be fair and substantially accurate account of proceedings
2.Truth and public interest
• Prima facie wrongfulness will be cancelled if defendant proves the remarks were true & in public interest – only has
to prove substantial, not literal, truth
• Public interest depends on boni mores
• Time/manner/occasion is NB – don’t rake up past transgressions
• Here, limits are NOT exceeded if person acted with malice
3.Media privilege
• Publication of false/untrue defamatory statements
• Apply this defence with caution
• Reasonableness depends on boni mores
Factors:
• Public interest (not interestedness)
• Nature of info on which it is based
• Nature of mass-medium used
• Extent of distribution
• Reliability of info
• Steps taken to verify info
• Opportunity given to person to react
• Necessity/urgency to publish before verification
• Was less harmful means to achieve same objective available
• Malicious motive
4.Political privilege
• Publication of false/untrue defamatory allegations
• Publications on political terrain
Law of Delict – PVL 3703 – Second Semester – 2011 Page 52
Physical Integrity
Good Name
Consequence
Study Unit 30 - The right to physical integrity; the right to a good name or fama; rights relating to dignitas
30. The right to physical integrity; the right to a good name or fama; rights relating to dignitas
Defamation
• The intentional infringement of another person’s right to his good name
• Defamation is the wrongful, intentional publication of words or behaviour concerning another person which has
the effect on injuring his status, good name or reputation
• Elements of this iniuria; the act, an injury to personality, wrongfulness and intent
• True defamatory words can also be actionable
Elements:
1.Publication (act)
• Defamation will arise only if disclosed to 3rd person (because relates to opinion of others concerning person), dws
publication is necessary
• Dws only needed to disclose is to at least 1 other person (other than plaintiff himself)
Qualifications:
• Not considered publication if disclosure made to outsider unaware of the meaning/defamatory character thereof
irt plaintiff
• Communication of such defamation concerning 3rd party from one spouse to another, does not constitute
publication
• Once publication established, plaintiff must prove that defendant was responsible for the publication.
• Question is whether result was foreseen/reasonably foreseeable
• Not only origin of defamation, but also persons repeating it, are responsible for its publication
2.Defamatory effect: wrongfulness/unlawfulness (infringement of personality right/defamatory effect)
• Wrongfulness lies in infringement of person’s right to his good name
• Question of whether good name has in fact (factually) been infringed is irrelevant
• Question should rather be (objectively) if the reasonable man is of the opinion that the reputation has been injured
– embodiment of boni mores criterion
Principles applicable here ito reasonable person test:
• Reasonable/normal/fictional/well-balanced/right-thinking person, with normal emotional reactions, not
oversensitive or hyper-critical
• Someone who subscribes to norms/values of Constitution
• Member of society in general, and not of a specific group
• Reaction of reasonable person dependent on circumstances
• Verbal abuse is not defamation (doesn’t injure good name)
• Words/behaviour are prima facie defamatory or not – but may even in secondary meaning be defamatory
(innuendo) – primary and secondary meaning ascertained objectively bmo test
• Ambiguous meaning – follow one most favourable to defendant
Grounds of justification (5)
• Plantiff proves defemation = prima facie proof of wrongfulness
• Defendant has onus to rebut + prove justification
Law of Delict – PVL 3703 – Second Semester – 2011 Page 51
, 1.Privilege or privileged occasion: Privilege
• Someone has right/duty to make certain defamatory assertions (to injure another’s good name)
• Absolute privilege (regulated by statute): Liability completely excluded
• Eg members of parliament having complete freedom of speech during debates
• Relative privilege: Only conditional protection – It falls away as soon as plaintiff proves defendant exceeded the
bounds
Duty discharge or interest furtherance
• Legal duty
• Social/moral duty – reasonable person test
• Legitimate interest
• Other person has corresponding duty to learn of the assertion
• Defendant must prove he acted within the scope/limits
• Plaintiff may still show he has malice
Judicial/quasi-judicial proceedings
• Applies to all participants
• They enjoy provisional protection
• Two grounds: relevance and reasonable grounds – absence of one = limits exceeded
• But plaintiff may still prove excess ito malice
Privileged reports
• Court/parliament/public body proceedings’ publications
• Must be fair and substantially accurate account of proceedings
2.Truth and public interest
• Prima facie wrongfulness will be cancelled if defendant proves the remarks were true & in public interest – only has
to prove substantial, not literal, truth
• Public interest depends on boni mores
• Time/manner/occasion is NB – don’t rake up past transgressions
• Here, limits are NOT exceeded if person acted with malice
3.Media privilege
• Publication of false/untrue defamatory statements
• Apply this defence with caution
• Reasonableness depends on boni mores
Factors:
• Public interest (not interestedness)
• Nature of info on which it is based
• Nature of mass-medium used
• Extent of distribution
• Reliability of info
• Steps taken to verify info
• Opportunity given to person to react
• Necessity/urgency to publish before verification
• Was less harmful means to achieve same objective available
• Malicious motive
4.Political privilege
• Publication of false/untrue defamatory allegations
• Publications on political terrain
Law of Delict – PVL 3703 – Second Semester – 2011 Page 52
