Defamation, naming and shaming, bad boy lists on websites

[duncan drennan]

Not so relevant to the defamation thing, but relevant to the people writing slanderous (and other stupid) content - try listening to yourself.

[murdock]

as is some of TV, radio, most junk mail, newspapers, magazines, all politicians and anyone who owes me money.

well i must agree with you on this...the latest is now...i am with a different bank so it will take a day or for the money to reflect on your account...then its but i emailed you the eft blah blah blah...

another one is we have changed the system and its taking a while to proccess your invoice....blah blah blah.

i have never in my entire 17 years of bussiness heard so many people making excuses why my COD payment has not yet been paid...and boy am i hearing some excuses...it is getting to a stage where i will be requesting payment with the order number....the problem is it is just getting worse by the day...i feel for people who have huge overheads...besides the customers i am loosing because they are cutting and running becuase of the crime i now having customer who are leaving because their companies are closing down due to no work...and it is scary to see how many of the ones left have their staff on short time or will be going onto short time soon.

[Sieg]

Then there was the case of Delta Motor Corporation (now General Motors, who make Isuzu, Corsa, etc) who tried to stop Jaco Van Der Merwe from "defaming" it by publishing all sorts of nasty stuff about his Isuzu bakkie that broke. He had banner ads put all over the bakkie.

See http://www.my4x4.co.za/Eng/index.html

Delta lost the case, all the way to the Appeal Court: http://www.saflii.org/za/cases/ZASCA/2004/61.html

Funny thing, this defamation.

Sieg

[Dave A]

Wow!

I hope every member who reads this will take a moment to use the thanks button to recognise Sieg's contribution.

Whilst anyone who thinks they might getting close to the line is advised to take a look at the judgement in full, the crux points seem to be (if you're allergic to long paragraphs, at least read the bold bits):

You may state the facts of the matter.

[8] The alleged defamation is contained in the e-mail and in the words displayed on the vehicle. Photographs of the vehicle were sent with the e-mail. Copies are not attached to the affidavits, but I shall assume that they show the same words: ‘Swakste 4 x 4 x Ver; Grondpad Knak Onderstel’. The first question is whether or not this was defamatory. I shall deal with the body of the e-mail first, and then with the words shown on the bakkie and in the photographs of the bakkie.

[9] The e-mail was sent via the internet to some 27 recipients. It reads:
‘Subject: FW:SWAKSTE 4 X 4 X VER.
Geagte vriend
Hiermee 'n verhaal wat ek met u graag wil deel. Hierdie bakkie se onderstel het op 5 April 2001 geknak op 29 000 km en 1 jaar en 1 dag oud. Met my terugkoms het Delta gesê ek het die bakkie misbruik aangesien daar 'n duik in die uitlaat pyp is en ook krapmerke aan die agterse ewenaar van die bakkie. Hulle sê ook dat die krapmerke dui daarop dat die bakkie aan 'n abnormale impak onderhewig was - Wat ek absoluut ontken aangesien my klein kinders agter in die bakkie lê en video kyk het op 'n klein TV. Tot vandag kon ek geen milimeter vorder met Delta nie. Ek het die SABS gaan aanklop en hulle het vir my 'n verslag gegee wat sê dat hulle van mening is dat die bakkie geknak het weens oneweredige staal. Selfs die SABS se verslag het Delta geensins laat afwyk nie en die aangehegte foto’s is die weg wat ek nou volg. Ek het ook gister vanaf 'n prokureur in Port Elizabeth verneem dat hulle opdrag het om 'n interdik teen my aan te vra. Ek sal natuurlik hierdie interdik ten sterkste teenstaan. Stuur hierdie epos asseblief aan soveel mense moontlik.
Groete
Jaco.’

[10] No innuendo is alleged. The test is whether a reader of ordinary intelligence might reasonably understand the words in the e-mail, in their ordinary sense, to have a meaning which reduces Delta in his or her estimation (Argus Printing and Publishing Co Ltd v Esselen’s Estate).[2] In my view the answer is no. Ignoring for the time being the heading ‘Swakste 4 x 4 x Ver’, the e-mail contains no adverse comment about Delta’s product generally or about this particular vehicle. Its author relates the common cause fact that the chassis bent when the bakkie was a year and a day old and had done 29 000 kilometres. He gives Delta’s view that this was because its driver had abused the vehicle, a conclusion that was reached because of marks on the exhaust and the rear suspension which led to the belief that the vehicle must have been subjected to an abnormal impact. He explains that he denies any such impact because of the presence of his small children in the back of the vehicle watching television. He then expresses dissatisfaction with the way in which Delta has handled his complaint by saying that he has made no progress whatever with them, despite a report from the SABS that the bent chassis was caused by inconsistencies in its steel structure. He comments that even this report did not bring about any change in Delta’s attitude. He says that his route is now to go the way of the attached photographs, that he has been warned of an interdict and that he will resist it strenuously. He ends by asking the recipient to send his e-mail on. It is evident that the author of the document has a dispute with Delta about his bakkie and that he is dissatisfied with Delta’s reaction, but I can find nothing in the wording of the document which is defamatory. There is nothing in what is said which might induce the reasonable mind to think less of Delta or its products. It can hardly be defamatory to say that in the writer’s view a vehicle made by Delta had a defect, that this conclusion was supported by a technical report, but that after an examination of its own Delta refused to agree.

You may express an opinion even if it is defamatory provided it meets certain conditions.

[11] I turn now to the words displayed on the bakkie and on the photographs of the bakkie. The respondent makes the point that these words do not mention Delta, and that on a fair reading the phrase ‘swakste 4 x 4 x ver; grondpad knak onderstel’ does not refer to Delta’s products in general but to his specific vehicle because, after all, it was only his vehicle whose chassis bent while being driven on a gravel road. This may be so. But the slogan is displayed on an Isuzu bakkie, a product manufactured by Delta, and in my view when it calls the vehicle the worst four-wheel drive vehicle by far, it reflects adversely not only on the particular vehicle, but on the product generally. It raises the possibility that the product is suspect or inferior because what happened to this vehicle could happen to other vehicles of the same make. In my opinion, this is prima facie defamatory: a reader of ordinary intelligence might reasonably understand the words to mean that Izusu bakkies generally are the worst 4 x 4 vehicles by far since they cannot withstand normal use on gravel roads. This applies to the words painted on the bakkie, the words shown on photographs of the bakkie sent by e-mail, and the words in the heading of the e-mail.

[12] Once the statement about Delta’s product is shown to be prima facie defamatory, the onus is on the respondent to show that publication thereof was not wrongful. The respondent seeks to do so by relying on the exercise of his right to freedom of expression. His defence is that of fair comment. There has always been tension between the right to freedom of expression, which is protected inter alia by the defence of fair comment, and rights to dignity, fama, and an unsullied reputation, which are protected by the remedies for defamation.[3] The Constitutional Court has held in Khumalo and others v Holomisa[4] that the principles of the common law as recently developed in National Media Limited and others v Bogoshi[5] are consistent with the provisions of the Constitution and maintain a proper balance between the right to reputation and the right to freedom of expression. It remains to apply those principles to the facts.

[13] For the defence of fair comment to succeed, the respondent must prove that the statement in question was a comment or opinion and not an allegation of fact; that it was fair; that the allegations of fact commented upon were true and accurately stated; and that the comment was about a matter of public interest (Marais v Richard en 'n ander).[6] ‘The use of the word “fair” . . . is not very fortunate. It does not imply that the criticism for which protection is sought must necessarily commend itself to the judgment of the Court, nor that it must be impartial or well-balanced. It merely means that such criticism must confine itself within certain prescribed limits’.[7] Those limits are that the comment must be a genuine expression of opinion, it must be relevant, and it may not be expressed maliciously.[8]

[reuben]

[Fantastic at last consumers have rights thanks jaco

[Dave A]

Here is another interesting one.

Attorneys representing a Cape Town businessman who has a company which owns a controversial Muizenberg building have demanded an apology from a resident who posted a "wrongful and defamatory" Facebook advertisement calling him a "slumlord".

But Emil Rorke says he will "absolutely not back down" and will continue with actions against Zhaun Ahmed, who he says owns the Don Pepe building in Muizenberg.

Police have raided the building several times and suspect illegal activities are taking place in it.

In a "Facebook group to advertise the worst slum in Muizenberg", Rorke said Don Pepe was "overcrowded, dirty" and was the "nexus of criminal and antisocial behaviour in Muizenberg".

He said the building was owned by Ahmed who "has long been a Muizenberg slumlord".

"The building is a disgrace and Zhaun Ahmed does not give a damn - nor does his son Ashraf," Rorke's Facebook entry reads.

Rorke, contracted by the Muizenberg Improvement District to resolve problems in Church Road on which Don Pepe is situated, also advertised a placard protest to be held outside the Zhaun's Group head office in Salt River next week.

In response to the Facebook post, Ahmed's attorney, Salvatore Puglia, contacted and e-mailed Rorke, saying Ahmed did not own Don Pepe in his personal capacity and "strongly" objected to the planned placard protest.
full story from IOL here

[Dave A]

I thought this was an interesting tidbit for this thread.

Pravin Gordhan has announced that treasury has published a blacklist on its website of people and businesses no government department may do business with. Only 100 listed (so far, I guess).

Does that mean public bad boy lists are OK then?

[AndyD]

There's a definite Limpopo theme that develops as you go down the list.

The reason 'Supplier paid bribes to employees' should rather maybe read 'Supplier was stupid enough to get caught paying bribes to employees'.

[murdock]

a quick solution to getting rid of the "families" competition...( got to get smart with the wording in replies...dont want to end up in jail for 25 years for a silly comment made on a public forum) and make sure you read my signiture...you might not be understanding quite what i am trying to say.

[Mark Atkinson]

Then there was the case of Delta Motor Corporation (now General Motors, who make Isuzu, Corsa, etc) who tried to stop Jaco Van Der Merwe from "defaming" it by publishing all sorts of nasty stuff about his Isuzu bakkie that broke. He had banner ads put all over the bakkie.

See http://www.my4x4.co.za/Eng/index.html

Delta lost the case, all the way to the Appeal Court: http://www.saflii.org/za/cases/ZASCA/2004/61.html

Funny thing, this defamation.

Sieg

This is the first time I've seen or heard anything about this case. Extremely interesting and inspirational!

Does anybody know the results of the criminal charges against the Delta employees? The website was last updated in 2004