We have dealt above with factual statements that may be defamatory. However, expressions of opinion are differentiated from factual statements. General Comment No. 34<\/a> states that defamation laws, particularly penal defamation laws, \u201cshould not be applied with regard to those forms of expression that are not, of their nature, subject to verification,\u201d[footnote]UNHRC above at n 9 at p 12.[\/footnote] such as opinions and value judgments. It also notes that \u201c[a]ll forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature.\u201d<\/p>\n\n\n\n To determine what counts as opinion, courts tend to look at whether a reasonable reader or listener would understand the statement as asserting a statement of verifiable fact, which is capable of being proven true or false. In the context of social media, a reasonable reader tends to be defined as someone who would ordinarily be following and reading the content of the person who has made the allegedly defamatory statement (per the example of Manuel v Economic Freedom Fighters<\/em><\/a> above). The context in which the statement was made is critical to determine whether a reasonable reader or listener would understand it as an opinion or as a statement of fact. There are, for example, ways in which a statement of fact may be made to appear as an opinion.[footnote]Electronic Frontier Foundation above at n 6.[\/footnote] In 2020, a US District Court dismissed a slander lawsuit filed against controversial Fox News talk show host Tucker Carlson, citing the fact that the “‘general tenor’ of the show should then inform a viewer that [Carlson] is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.’\u201d[footnote]US District Court, Southern District of New York, Case No. 1:2019cv11161 – Document 39\u2019 (2020) (accessible at https:\/\/law.justia.com\/cases\/federal\/district-courts\/new-york\/nysdce\/1:2019cv11161\/527808\/39\/).[\/footnote]<\/p>\n\n\n Similarly, content that a reasonable reader or listener would identify as humour or satire, and not reasonably interpret as stating fact, is also not liable for defamation.<\/p>\n\n\n\n A prime example is that of the South African cartoonist Jonathan \u201cZapiro\u201d Shapiro, who was sued for defamation by former South African President Jacob Zuma for a cartoon in which he depicted the former President, who was previously charged with rape and accused of undermining the justice system to avoid charges of corruption, preparing to sexually assault a symbolic Lady Justice. Right before the case was to be heard, Zuma withdrew his suit, which Shapiro hailed as \u201can important signal that the president respects the right of the media to criticise his conduct.\u201d[footnote]Verashni Pillay, \u2018Zapiro cartoon: Zuma surrenders, drops lawsuit,\u2019 (2012) (accessible at https:\/\/mg.co.za\/article\/2012-10-28-zuma-avoids-zapiro-court-showdown-over-cartoon\/).[\/footnote]<\/p>\n\n\n\n In an amusing recent example, American satirical news publication The Onion submitted an amicus curiae<\/em> brief<\/a> to the United States Supreme Court in a case brought by a man who was arrested for mocking local police using satire. The brief blends legal arguments with humour and satire to argue for protecting the publication of parody and satire as an ancient and valuable art form and to prevent the imprisonment of humourists.[footnote]Novak v City of Parma and Others, \u2018Brief of the Onion as amicus curiae in support of petitioner,\u2019 Supreme Court of the United States No. 220293, (accessible at https:\/\/www.supremecourt.gov\/DocketPDF\/22\/22-293\/242292\/20221003125252896_35295545_1-22.10.03 – Novak-Parma – Onion Amicus Brief.pdf).[\/footnote]<\/p>\n\n\n\nFactsheet: Defending the Media in Satire Cases<\/a>\n\n\n A point of consideration, particularly for journalists, is the extent to which they are liable for the potentially defamatory statements of others since a central part of their work is reporting on the words of others. The European Court of Human Rights (ECtHR<\/a>) has found that a journalist is not automatically liable for the opinions stated by others, and is not required to \u201csystematically and formally\u201d distance themselves from \u201cthe content of a statement that might defame or harm a third party,\u201d[footnote]European Court of Human Rights, Application No. 1131\/05 (2007).[\/footnote] provided they have not repeated potentially defamatory statements as their own, endorsed, or clearly agreed with them. The ruling of the High Court of South Africa in Manuel v Economic Freedom Fighters and Others<\/em><\/a>[footnote]High Court of South Africa above at n 32.[\/footnote] raises some questions about the extent to which this principle holds up in African courts, particularly in the online domain.<\/p>\n\n\n Privileged statements refer to those made in the public interest. Statements that are reported from the legislature or judicial proceedings are usually considered absolutely privileged, meaning that neither the author of the statement nor the media reporting it are liable for defamation. Some other types of statements reported from public meetings, documents and other material in the public domain may also enjoy qualified privilege.<\/p>\n\n\n A general principle of law is that the burden of proof lies with the claimant \u2014 the person who brings the suit or makes the \u201cclaim\u201d. However, with defamation, this principle is generally reversed, and the responsibility lies with the defendant \u2014 the person who made the allegedly defamatory statement \u2014 to prove that the statement did not damage the claimant\u2019s reputation, either because it is true or for one of the other reasons listed above. The United States is a prominent exception to this rule, wherein the burden of proof in cases brought by any public figure falls on the claimant.<\/p>\n\n\nHumour<\/h3>\n\n\n\n
Statements of others<\/h3>\n\n\n\n
Privileged statements<\/h3>\n\n\n\n
Whose burden of proof?<\/h3>\n\n\n\n
Remedies and penalties<\/h3>\n\n\n\n