Introduction

Defamation proceedings, subject to the intention with which they are launched, can either be a tool or a weapon. As a tool, it can enable legal redress on the basis of the infringement of rights, such as the right to dignity. However, when defamation proceedings are launched in an effort to silence dissenting voices or intimidate critics, it becomes a weapon.

• Defamation claims are increasingly used to stifle freedom of expression and dissent, particularly of journalists.
• While defamation laws aim to provide individuals with a remedy for public statements that may harm their reputation or honour, they frequently come into conflict with the right to freedom of expression, which is enshrined in several international law instruments and national laws.
• Balancing the protection of fundamental rights with protecting individuals from harmful statements is central to the appropriateness or otherwise of defamation claims.

The impact of the internet, and particularly social media networks, has meant that it is easier than ever to publish content to a wide audience. As a result, defamation has become a commonly used defence against statements published online, whether justifiably so or not.

The ability to freely post information on social media and the internet without the same degree of thought and review as traditional media, combined with a lack of awareness about defamation laws and the fact that many countries lack clear legislative frameworks dealing with defamation in the online space, has led to an increase in online defamation cases and some ambiguity in how defamation applies in the online sphere.(1)

In the recent South African case of Native Child Africa (Pty) Ltd v Akinwale, the Court tackled issues concerning social media influencers in the context of a defamation claim.(2)

The Court issued restraining orders against the influencer, barring defamatory content on various platforms, and preventing statements encouraging boycotts of the applicant’s business. The influencer was also required to remove all defamatory material, issue apologies, and refrain from such behaviour. The Court explained that “without timely intervention, followers of such influencers could engage in damaging or even aggressive actions against brands, potentially leading to a disregard for law and order on social media platforms”. This illustrates the contemporary and ever-evolving considerations relating to defamation online.

Dealing with online defamation cases is particularly challenging for many reasons,(3) including that “the internet is not an easily identifiable body that is administered or regulated within the confines of strict internationally recognised parameters or boundaries.”(4) The online environment can make it more difficult to identify or trace perpetrators, and victims may want to consider whether to pursue the perpetrator or the system operator since some legal systems consider anyone who participates in distributing defamatory material equally liable.(5)

In addition, deciding the jurisdiction of the court to hear the matter can be difficult, as messages can be posted from all over the world, and the parties to a dispute may come from and be located in different jurisdictions, or the message may have been posted somewhere else entirely.

This module provides an overview of defamation laws in Africa, and how the courts have attempted to find the balance between various rights in recent jurisprudence, particularly in dealing with online defamation cases.