Default Received summons - how do I change hearing to another magisterial district?

[jonnoxx]

Defamation is defined as the intentional publication of words or behavior concerning another which has the tendency to harm their good name or reputation.
Defamation via internet must still meet standard the elements of delict.
There can only be defamation where a THIRD person comes to know of the words/actions.

A plaintiff must prove publication (that is a third person has become aware of the act and content)
Publication can occur in various forms (speech, print, suggestion (innuendo). it includes posting a defamatory message on a bulletin board, in a forum, file transfer, video conferencing and email

Publication can also be presumed - where it can be expected that people will read or hear the words, eg, a bulletin board or forum. (In other words, whilst there is no direct evidence that the words came to the attention of others, it is most probable that it will.)

With regards to email, it is considered to be published once the THIRD party opens, unzips or reads the email.
This presumption can be rebutted if the file is encrypted or does not reach the recipient.



Once publication has occurred, then the delictual element is alive, and a cause of action arises. That cause therefore arrives WHERE publication took place.
A new cause of action arises for every publication (hence internet based defamation claims are potentially hazardous)

To return to the question posted - the Plaintiff can institute in Gauteng given that the publication occurred there.
Of course, because that particular publication, did not come to the attention of a third party it does not complete the required steps of a delictual claim.

I see the "place" of publication differently. Let me explain by analogy:

An author writes a story and gives the manuscript to his agent, and the book is "published" in (say) New York in (say) 2000.

Many years later, a person walks into a bookstore in London, sees the book for the first time, and buys it. And at that point only, this new reader becomes aware of the contents of the book for the first time. (he could have heard about it elsewhere before, but for the purpose of discussion here, we stick to these assumptions for the simplest case, merely to make the point)

It will be - and this is my assumption - that the commonly accepted understanding would be that the book was published in New York - and ONLY there. And that it was published in 2000. The fact that the reader opened the book for the first time in some other place does not change the place of publication or time of original publication??

As I understand it from this analogy then, "publication" occurs when you "release" a communication (book or email) into the wild ie you have no more control over it. In the case of an email, "publication" therefor would seem to occur when, and from where, you "send" it. The fact that a reader at his computer may observe the communication at another time or different place is irrelevant. Even if he was flying over international waters on the way to Tokyo does not change this?

Yes/No???

I stand to be corrected, and will take my pain!

[Houses4Rent]

Wait a second. Any articel about a scam or other bad people and bad things are then defamation???

[Dave A]

Wait a second. Any articel about a scam or other bad people and bad things are then defamation???

There is a fine line between defamation and fair comment. To a large extent, it depends how you go about.

As I understand it from this analogy then, "publication" occurs when you "release" a communication (book or email) into the wild ie you have no more control over it. In the case of an email, "publication" therefor would seem to occur when, and from where, you "send" it.

That certainly is the case when it come to posting onto social media. It would seem the issue is treated differently when it comes to email, though - probably because the recipients are "targeted" / known.

[jonnoxx]

There is a fine line between defamation and fair comment. To a large extent, it depends how you go about.


That certainly is the case when it come to posting onto social media. It would seem the issue is treated differently when it comes to email, though.

Have you get a nice example to illustrate the difference of email, Dave?

I think a previous comment may have conflated two separate, and very different issues: the one being what is meant by "publication", and other when "defamation" can be brought into play. In the latter, defamation can only be complained about when a third party is brought into the picture. But this has got nothing to do with the issue of "publication" - which is a different matter altogether.

[Dave A]

I think a previous comment may have conflated two separate, and very different issues:

I think the risk we both run is conflating the two uses of "publication" as they are applied in this thread

First, I trust Anthony's opinion in matters legal, so without hard evidence to the contrary, I suggest Anthony's posts are accepted as fact in this.

In considering the merits, I think we should recognise there is a fundamental difference between email communication, which is ordinarily sent to known recipients, vs social media which is essentially a broadcast form of communication.

[sterne.law@gmail.com]

Publication in regards to e commerce carries a different meaning to the dictionary meaning.
At the risk of over simplifying, the harm to reputation can only occur once a third party gets knowledge.
The word publcation in ecommerce should probably be understood against the technical background.
Once I send an email it bounces from router to router, theoretically it is out there at a third party. Clearly though, it can't cause harm to reputation.
Also, a data message actually gets broken down into pockets of data that bounce around. So when an email is sent, it gets broken up, so it can't be harmful because it is, essentially encrypted, therefore can't be read. It's this technical issue that differentiates internet legal principles from others.


In the book example, even if 1 million books were sold, but not a single one was read, then there can be no reputation harm, and therefore no damage.

Fair comment v defamation
Not every post is defamation. There is opinion and of course the truth. Also a journalist might publish an untruthful fact, but not be held liable because he took nr necessary steps to check, despite which the truth was not uncovered.

[jonnoxx]

Publication in regards to e commerce carries a different meaning to the dictionary meaning.
At the risk of over simplifying, the harm to reputation can only occur once a third party gets knowledge.
The word publcation in ecommerce should probably be understood against the technical background.
Once I send an email it bounces from router to router, theoretically it is out there at a third party. Clearly though, it can't cause harm to reputation.
Also, a data message actually gets broken down into pockets of data that bounce around. So when an email is sent, it gets broken up, so it can't be harmful because it is, essentially encrypted, therefore can't be read. It's this technical issue that differentiates internet legal principles from others.


In the book example, even if 1 million books were sold, but not a single one was read, then there can be no reputation harm, and therefore no damage.

Quiet agreed.

But the book analogy is still strong.

Just like an email can "bounce around from router to router", so too can a book "bounce around from warehouse to warehouse". Just like an email is "encrypted and cannot be read", so too is exactly the same situation for the book. For example, the book can be enclosed in a parcel, and would not be able to be read by any third party - unless it was purposefully hacked (ie the parcel was deliberately ripped open). While the book is safely enclosed in the parcel, it can't be harmful - because it cannot be read. Just like an email!

This analogy seems to have very good legs! So now we can come back to the issue of "publication". It clearly wasn't "published" when the parcel was eventually opened and legitimately read. It was published, in the case of the book example, in 2000 in New York. And in the case of the email example, when, and from where, it was sent. The time and place of reading a book - or an email - is irrelevant to the time and place of original publication.

Counter-arguments would be ... ???


And

[sterne.law@gmail.com]

In books the word publishing has a very specific meaning.
Perhaps it's better to ignore this word in the overall discussion.
Damage only occurs when a third party gets to know of it.
Therefore, the book is published, when the publisher releases it.
Damage occurs when a third party reads the book.

Rather than hang onto A single word one should return to the crux of when and where a claim can arise. That is only when the information comes to the knowledge of a third party.

So the book is published in London. A potential damages claim arises in New York when the first book is purchased.
The writer can be sued, and the actual publisher.

[Dave A]

Counter-arguments would be ... ???

At the end of the day, the major issue at hand is defending the action against you

[sterne.law@gmail.com]

At the end of the day, the major issue at hand is defending the action against you

The first email was not damage causing as it was not sent nor intended to reach a third party.
The recipient sent it to others.
The issue is the second email, which was sent to others. This could be damage causing as it was sent to third parties. This tempered by Tehran fact that the intended recipient had drawn those others in.
Whether damage flows from the second email would turn to a large extend on the content and it's relAtion to the first email.
If get second email was a continuation of the allegations and thought patterns of the first then it is unlikely to hold up.
If it is totally new, then it may be a cause for action. However, damage to reputation is calculated on what was said and where and how many heard about it.
An arrest televised would clearly be more damaging than 10 cop cars getting you at home.
Against this background, give the recipient sent on to others, it would be unlikely that he suffered reputation harm.
Given that summons has been served, you need to put in an opposition notice and start going through the processes.
In the interim I would have a letter sent setting out that this seems a frivolous law suit and you will seek an adverse costs order.
Importantly, if the summons does NOT refer to the email being sent to others, then you should except to the summons as not establishing a cause of action.