Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Contracts Expression
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By circulating a photoshopped picture, which depicted the respondent with another man in a sexually suggestive pose, the applicants were liable for defamation. They were liable because a reasonable person could have associated the respondent with the sexually explicit situation portrayed, and that association may have injured the respondent’s reputation.
The applicants in this case were former school children who attended the school of the respondent, Dr. Dey. The action arose from a computer image the applicants created. The applicants superimposed a picture of the respondent’s face, along with that of the school principal, on an image of two naked men sitting in a sexually suggestive pose. Dr. Dey subsequently sued the applicants for defamation per se. The trial court found in favor of Dr. Dey and ordered the applicants pay him R45,000 in damages. On appeal, the Supreme Court of Appeal upheld the decision. The applicants then appealed the case to the Constitutional Court of South Africa.
In a defamation per se case, the court considers two prongs when evaluating the accused’s conduct. First, the court must look to the ordinary meaning, express or implied, that the publication would have to a reasonable person of ordinary intelligence. The intent of the accused defamer is irrelevant. Rather, the court considers how a reasonable person would have interpreted the statement or publication in question. Second, the court must determine whether the established meaning is defamatory. A statement or publication will be defamatory if it is likely to injure the good esteem of a person as determined by a reasonable or average person.
Here, despite the court’s acknowledgment that the picture of the respondent was poorly crafted and that no reasonable person would believe that it actually depicted him, the court found, nonetheless, that it could be implied that there was some association between respondent and the picture. The court determined that an average person would associate the respondent with the crude image, thus making the respondent an object of ridicule and disrespect. Furthermore, the court found the picture to be defamatory because the whole purpose of the picture was to tarnish the respondent’s reputation. According to the court, the image and its impact undermined the authority of the respondent by belittling him and “rendering them objects of contempt and disrespect.” As such, the court found that, in the average person’s view, the picture would injure the good esteem of the respondent.
The applicants contended that the picture was meant as a joke or caricature, and, thus, a reasonable person would see it as such. However, the court disregarded the notion that a joke, caricature, or cartoon can never be defamatory. On the contrary, the court held that all three could be defamatory if it met the above test. Specifically, a joke can be defamatory if a reasonable person would, despite finding it funny, still believes it was belittling to the person being mocked. Therefore, the court will consider the reaction of person(s) who is the subject of the joke. Here, it was obvious to the court that the respondent would and did find the joke offensive and belittling, and that a reasonable person would be able to see that response as well. As such, even though it was a joke, the court determined that the picture was still defamatory.
The applicants argued that they did not have the intent to defame the respondent because they did not appreciate the wrongfulness of their action. In the court’s view, the applicants did not have intended the harm to the respondent. Rather, they need only have been able to foresee that the photo could be defamatory and then proceed anyway. The court also believed that the applicants did know what they were doing was wrong, as demonstrated by their testimony. When testifying, two of the applicant conceded that they would not have place the faces of other authority figures in that particular photo. The court took this testimony as affirmative proof that the applicants were aware that what they were doing was wrong. Thus, the court rejected this particular defense of lack of intent to defame.
Despite agreeing with the lower courts that the applicants were indeed liable for defamation, the court did alter the damages awarded. Specifically, it lowered the amount to be paid from R45,000 to R25,000. The court had several reasons for doing so. First, the court considered the fact that the applicants were school children, which weighed in favor of lowering the penalties. Second, the applicants had already been punished for their actions in other ways. Finally, damages for defamation are used to compensate the plaintiff for both wounded feelings and loss of reputation. Here, the court believed that the respondent’s hurt feelings outweighed the damage done to his reputation. As such, the original damages were not proportional to the respondent’s harm, and, therefore, the court felt the amount of damages should be lowered.
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