CHAPTER 2 FOREIGN LAW
2. Defamation Shakespeare stated: 491
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commits actions which are not necessary to complete his duties but still commits these actions whilst engaged in the affairs of the employer. In such cases the court held public policy will dictate whether the employer will be held vicariously liable or not.490
The circumstances in which an employer must guard against being vicariously liable are discussed below.
2. Defamation
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Publication can be defined as an ‗‗act of making known a defamatory statement or the act of conveying an imputation by conduct, to a person or persons other
than the person who is the subject of the defamatory imputation‖.494 The requirement of publication is met when a defamatory statement that impairs the reputation of a third party is spread and read through by others using the employer‘s electronic communications‘ system as a medium.495
An employer can be liable for defamatory e- mail sent by an employee in the course of his or her employment, provided that the requirement of ‗publication‘ was met. The question that subsequently arises is, what exactly constitutes publication on the Internet.
In National Media v Bogoshi 1998 4 SA 1195 (SCA); it was stated that ‗‗publication is the act of making known a defamatory statement or the act of conveying an imputation by conduct, to a person or persons other than the person who is the subject of the defamatory statement or conduct‘‘.496
It can be inferred from this statement that the following acts will amount to publication: postings to a newsgroup, sending an email, making a website available on the internet, internet relay chat and file transfer by file transfer protocol.497
In terms of the South African law of delict, no publication has taken place if the person to whom the statement was made did not understand the meaning thereof. Consequently, if a defamatory statement is encrypted, it will be published only once it has been decrypted.498
―A reasonable, right thinking person of average education and normal intelligence; he is not a man of ‗morbid and suspicious mind,‘ nor is he ‗super critical‘ or abnormally sensitive; and he must be assumed to have read the articles as article are usually read‖ (474 A-C).
494 Mischke op cit note 35, 46
495 Ibid
496 National Media v Bogoshi 1998 4 SA 1195 (SCA)
497 V Etsebeth ―The growing expansion of vicarious liability in the information age (part 2)‖. (2006) 4 TSAR 755
498 Ibid
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Publication will take place on the internet where the defamatory statement is read, seen or heard and when the receiver understands its contents. Therefore, it is not sufficient for a subject merely to read, see or hear the defamatory statement. He/she must actually understand the content thereof.499
In the case of CWU v Mobile Telephone Networks (Pty) Ltd 2003 8 BLLR 741 (LC) it is evident that liability for defamation can result in vicarious liability for a company. This case concerned a derogatory e- mail sent by one of the employees of MTN. The e- mail contained allegations that MTN‘s management was corrupt and that they show favouritism to a certain temporary employment agency.
MTN charged the employee with: (i) intentional circulation of an email insinuating that MTN management was corrupt; (ii) intentionally and disrespectfully engaging in abusive and insulting language in that he insinuated that management were ‗‗fat cats‘‘; (iii) making unfounded allegations against management by insinuating in the email that management was benefiting from recruitment processes; (iv) bringing the company‘s image into disrepute in
that he circulated the email to MTN employees; and (v) intentionally conducting himself in an insubordinate manner in that the email contained derogatory remarks against MTN management and clients.500
The court found that the employee had failed to comply with the procedure established by MTN for reporting allegations of fraud, and that he was seeking a wider audience in the form of MTN management and employees.501 His email therefore increased the damage to the reputation of MTN and his actions therefore justified a defamation suit against him. The court held that in addition, there were grounds on which the clients of MTN could institute a vicarious liability suit against MTN.502
499 Ibid
500 CWU v Mobile Telephone Networks (Pty) Ltd 2003 8 BLLR 741 (LC) at 743G-744B.
501 supra note 43, at 748F
502 supra note 43, at 748F.
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A court can find that in providing an employee with ‗‗tools‘‘ to access the internet and email facilities, the employer is directly liable as a publisher or disseminator of the offending statement.503
Employers that decide not to regulate publication of material on the internet by their employees could be potentially exposing themselves to a possible claim for negligence on grounds that they owed a duty of care to their employees and third parties to impose some restrictions.504
From the above therefore it is accurate to conclude that if a defamatory statement is posted on a Usenet newsgroup or where the email is sent to a person other than the person who is defamed in the message, the requirements of publication would have been met.505
Where an e- mail or e- mails are used as the medium for defamatory remarks in the workplace it is important to remember that the defamation will probably occur at the place where the offending material is accessed. This might impact on a defamatory e-mail received from a foreign jurisdiction, as a South African court will only have jurisdiction in South Africa if the words were published (accessed) in South Africa.506
This could pose even further problems for employers as practically every country in the world has access to a specific company‘s web site, which in turn means that the company is exposing itself to the possibility of being sued in every country where that specific e- mail has been accessed as a result of the behaviour in certain instances of a single employee.507
503 Etsebeth op cit note 31, 757 , see also[ An international example of online defamation is found in the Australian case of Dow Jones &Co INC v Gutnick 2002 HCA 56. This case represents the first Australian case by a final court of appeal on transnational online defamation. Gutnick, the plaintiff (AU), brought an action against the defendant, an American publisher of Barron‘s magazine and Barron‘s Online. The action was based on an article containing a large photograph of the plaintiff and a statement that he did business with convicted money launderers. This article appeared in printed form and on the web site. Gutnick succeeded in his claim.]
504 Michalson op cit note 3, 199
505 Etsebeth op cit note 40, 757-758
506 Michalson op cit note 3, 199
507 Ibid
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