Defamation​

In a world of social media and self-appointed media commentators, defamation or a flirtation with defamatory material has become the order of the day. It therefore begs the question – what is defamation, who can sue for it and how does the scope of free speech factor in such claims?

Defamation is the unlawful and intentional publication of slanderous information concerning another which causes harm or injury to the victim through reputational impairment. The effect would be to lower the victim in the estimation of an ordinary man.

The information has to be weighed against the constitutional provisions guaranteeing freedom of expression and communication of ideas.

Any person or corporation can sue for defamation and it is only the government, local authorities and statutory corporations commonly known as government companies which are restricted from suing. If this was allowed, it would limit the public’s right to scrutinize the actions of government companies.

Now back to social media, it follows that all posts, be it pictures, videos or live feed qualify as publications in terms of a defamation law suit. The court will also consider the ‘following’ that the defaming person has on social media to determine the extent of the prejudice suffered as a result of defamation.

However, the courts take a different view when it comes to public figures. It recognizes that public figures require to be thick skinned by virtue of being public figures. Their lives are after all, in public view and for public consumption and comment. To qualify for defamation, the publications would require to be malicious and reckless.

To escape liability from a defamation suit, one must either justify the publication, explain it is a fair comment or claim privilege amongst other things.

In the event of a successful suit for defamation, the court may order a public apology, retraction of the defamatory statement through a new publication stating the correct position or damages. The cases that commonly come before the courts are of victims suing for damages.

Defamation in Zimbabwe is also regulated to a certain extent by cyber protection laws that have recently been put in place. The Cyber and Data Protection Act [Chapter 12:07] which became law in December of 2021 was enacted to increase cyber security in order to boost confidence and trust in the secure use of information and communication technologies by data controllers, their representatives and data subjects.

The provisions in the Cyber and Data Protection Act simply impose criminal liability on any person who generates, shares or posts any material on any electronic medium with intent to cause harm to the victim by way of bullying, harassing, humiliating etc.

It is important to note that the measures introduced by the Act offer quick and affordable access to recourse for victims of cyber bullying and circulation of false messages through the criminal justice system.

In conclusion, whilst the civil court is there to provide remedies under defamation suits for parties who suffer patrimonial loss, the criminal court through the Cyber and Data Protection Act seeks to achieve justice against unmasked perpetrators of defamation and cyber bullying by way of arrests and convictions.