Wrongfulness in the South African law of defamation
Author: Anton Fagan
Affiliations: WP Schreiner Professor of Law, University of Cape Town
Source: South African Law Journal, Volume 140 Issue 2, p. 285-327
According to some South African delict scholars, the South African law of defamation makes the wrong fulness of a defamatory statement turn on two conditions: first, that the statement caused reputational damage; and, secondly, that the damage caused was not outweighed by the achievement of some greater good. This article proposes an alternative view. According to it, the wrong fulness of a defamatory statement turns on two very different conditions. The first is that the statement represented the defamed person (the plaintiff) as having a worth which is less than the worth which the person ought to be estimated to have. The second is that the person making the statement (the defendant) intended this. The article starts by raising two objections to the scholars’ view. One is that it cannot explain the fact that a defamatory statement can be false yet lawful. The other is that it cannot explain the fact that a defamatory statement may be found to be wrong ful even though it caused no reputational damage. After this, the article goes on to discuss and defend the alternative view’s two conditions — that is, the ‘representation condition’ and the ‘intent condition’. The latter is likely to be the more controversial, as it flies in the face of a scholarly dogma to the effect that wrong fulness does not in any way depend on fault. However, as the article demonstrates, it is impossible to make sense of the wrong fulness-negating defences of privileged occasion, fair comment, and reasonable publication, unless we accept the intent condition.