OPINION: Where SA defamation law stands on ‘naming & shaming’
This article first appeared on _ The Conversation._
Naming and shaming is a common tactic among activists, lobby groups and the media. Corporations are blasted as polluters. Politicians are exposed as expense cheats. Paedophiles and sex offenders are outed on social media.
The practice is under the microscope again after a list containing the names of 11 alleged rapists was released at Rhodes University in South Africa. The list was then distributed on websites, Facebook and Twitter. It sparked a hashtag, #RUReferenceList, that trended for days.
The publication of the list drew mixed reactions, with some supporting the publication of the list and others calling it defamatory.
So what do the country's laws say?
In South African law the wrong of defamation is committed whenever anyone publishes a defamatory statement about another living person. "Defamatory" refers to any allegation that would tend to lower the plaintiff's - in this case the 11 men's - standing in the eyes of "right-thinking people". "Right-thinking" refers to the values that underpin the country's famous Bill of Rights.
"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.
There are of course other important values, constitutional and otherwise, which are implicated in defamation cases. The law gives effect to these through a range of powerful defences. These defences protect freedom of speech and serve the public interest by ensuring that certain kinds of defamatory allegations can be made with impunity.
One of these defences protects statements which are both true and in the public interest. If it can be shown that the allegations of rape against each one of the 11 men are true, the defendants will enjoy complete protection.
The standard of proof - "on the balance of probabilities" - is lower than that applied in criminal cases - "beyond reasonable doubt" - and could potentially be satisfied by victims' testimony.
Another important defence is that of privilege. This protects statements made by someone who is under a moral or legal duty to make them or has an interest in making them to someone else who has an interest in hearing them or a duty to do so. A typical example is reporting a crime to the police.
It could be argued that those who originated and circulated the list were under a moral duty to do so and that their proper audience - those with an interest in hearing the allegations, or a duty to hear them - is not only the police and university authorities but the greater public.
This argument assumes that the criminal justice system cannot provide adequate redress to the victims of rape, and that for this reason direct action against rapists is justified.
However, a ruling that the list's public circulation was privileged and therefore lawful would effectively legitimise self-help. This is something which the law is generally reluctant to do. So it doesn't seem that a court could ever validate this view.
Finally, it might also be possible to defeat the defamation claim merely by arguing that those who circulated the list believed themselves to be doing the right thing, regardless of the correctness of their belief. In that case, the argument goes, they lacked the wrongful intention necessary to constitute a violation of the law. But that argument has been treated with suspicion by the courts and is unlikely to succeed here.
STEPS THE LAW COULD TAKE
What happens if defamation is proved?
The originator would be held liable for all foreseeable consequences of the statement, including those flowing from republication by third parties. Those who repeat it would be liable too. Damages payable could potentially include the loss of past or future earnings as well as actual or probable damage to person or property.
In certain circumstances, a court might grant an order requiring that any existing instances of the defamatory statement, such as on a website, be removed. The order would likely also forbid all future republication. Anyone breaching such a court order is then in contempt of court and could be prosecuted.
Helen Scott is professor of private law, University of Cape Town.