Social media has created platforms where people can engage and speak out their ideas and thoughts. Mass media is an important resource for mass dissemination of information. How it is used is important as it can build or destroy a person.

You may have seen how some people were literally destroyed by social media. It is not uncommon for people to abuse these platforms and make  statements that tend to attack the person and integrity of other people.

This week I want us to look at something that is affecting many people; defamation.

Defamation, usually and erroneously called “deformation” by many people, is one of the most topical areas in society. Everyone wants a good name, and to be build a reputation.

The common law recognises the right to fame, hence it protects it through provision for defamation as a cause of action.

The Constitution guarantees freedom of expression, freedom of conscience, among some of the rights. It must be note that no rights are absolute.

The law seeks to strike a balance between competing rights in particular, the law recognises the right of the individual to be afforded protection against harm to his reputation.

On the other hand, it also recognises that the public have a right to free speech and to proper access to information.

This recognises the importance of the press in providing checks and balances, and also the importance of free press that keeps the public informed, especially about public affairs.

There is no right that is absolute, there are limitations that are found in terms of the same constitution that gives the rights. The provisions in the Constitution of Zimbabwe are relevant in relation to the balancing of competing interests.

Section 61 provides for the fundamental rights of freedom of expression and freedom of the media. Freedom of expression includes the right to communicate information to others and to receive information.

Section 61(5) excludes from the rights of freedom of expression and the media excludes, amongst other things, malicious injury to a person’s reputation or dignity.

There is an acknowledgement in terms of the law that individual reputation and dignity ought to be protected.  In terms of section 86 and 87.

Further restrictions can be imposed in the interests of defence, public safety, public order, economic interests, public morality or public health.

What is defamation?

Defamation arises when a person makes a statement which is published and injures the person to whom it refers by lowering him in the estimation of reasonable, ordinary persons generally, it diminishes his/her esteem or standing in the eyes of the ordinary members of the general public.

Defamation has the effect of causing harm to reputation, that is, the estimation in which a person is held by others (his good name and standing). It will cause the person to be shunned or avoided or exposing him or her to hatred, ridicule or contempt. Further, defamation arises by casting aspersions on his character, trade, business, profession or office.

The essential elements

The definition of defamation presents two fundamental elements, in particular there has to be communication of a defamatory statement to a third party/ person or in presence thereof.  In the absence of publication of the communication to a third party, there is no defamation. A good example is that of two people shouting at each other in their privacy, there is no publication and consequently, one cannot find a claim for defamation.

There is another dimension that arises in connection with publication, that is republication. If a third party re-publishes a statement originally made by the Defendant party, the Defendant will also be liable to pay damages for that further publication of this defamatory statement if:

He authorised or intended the repetition, or

To his knowledge, the other person had a moral duty to repeat the matter, or

The publication flows in the ordinary course from the original publication.

The second element is that that particular publication has the effect of injuring the person to whom it refers by lowering him/her in the estimation of reasonable, ordinary persons generally, it diminishes his/her esteem or standing in the eyes of the ordinary members of the general public.

The scope covered by the definition is wide. I would just pick a few in order to put the discussion into perspective. A person’s reputation will be damaged and reputation arises if you accuse a person of committing criminal activities, or accusing a woman of being a prostitute. In the case of politicians, accusations of corruption are enough to damage their reputation because of the nature of their office. In the case of a business person any link with any unscrupulous business practices can also give rise to damage in reputation for example. There are many examples hence we cannot exhaust all of them at this stage.

In Musukutwa v Marova HH-20-94 the Defendant said that another railway worker had caused the death of a workmate through witchcraft or similar means.

In Tabanie v Chimanzi HB-75-90 a police constable was falsely accused by a member of CIO of providing assistance to two armed bandits and sharing in the spoils of the robbery and attempted murder committed by them.

In Macheka v Metcalfe & Anor HH-62-07 In front of others, the Plaintiff who was a prophet, was accused of theft and was arrested by Defendant’s workers at the instigation of the Defendant.

In Moyo v Abraham HH-467-84 the Defendant made an accusation that a woman was a prostitute. Social media is awash with these allegations against prominent people. These can make you vulnerable for damages.

In all the above cases, damages were awarded for defamation.

To be continued next week . . .  

LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorney [email protected]