Can your freedom of speech be limited? Defamation of character vs. crimen injuria
20 Nov 2023
The concepts of defamation and crimen injuria are two distinct legal principles relating to wrongful and unlawful things people can say to or about others, causing harm to that person. In both cases, the victims are protected from statements made by other people. Although we all have the constitutional right to freedom of speech, as enshrined in Section 16 of the South African Constitution’s Bill of Rights, this right can be limited in certain circumstances.
What is crimen injuria?
Snyman[i] defines crimen injuria as follows:
“Crimen injuria consists of the unlawful, intentional and serious violation of the dignity or privacy of another.”
Crimen injuria will always involve two parties: the person committing the act and the person the act is being committed against. One of the elements of crimen injuria is that of “the infringement of the dignity or privacy of another”[ii].
The harm caused can therefore take place in one of two forms, being either the infringement of a person’s dignity or the infringement of a person’s privacy. The interest protected is that of a person’s dignity. A person’s dignity is a person’s personhood, excluding a person’s bodily integrity or reputation. The harming of a person’s personality falls under the crime of defamation of character, which is described below. The harm can be caused by word or deed. An example of crimen injuria would be calling a woman a “bitch”[iii]. In the event that a person is the victim of crimen injuria, that person will therefore be able to lay a criminal complaint at the South African Police Services.
A person will also be able to lodge a civil claim in cases of crimen injuria. In S v S[iv], it was confirmed that the elements of crimen injuria will be the same “whether it be punished civilly or criminally”.
In Minister of Police v Mbilini[v] , the Court stated:
“Every person has an inborn right to the tranquil enjoyment of his peace of mind, secure against aggression upon his person, against the impairment of that character for moral and social worth to which he may rightly lay claim and of that respect and esteem of his fellow-men of which he is deserving, and against degrading and humiliating treatment; and there is a corresponding obligation incumbent on all others to refrain from assailing that to which he has such right.”
In Ryan v Petrus[vi], the Court confirmed that the nature of the word uttered, as well as the context in which it is used, will affect the damage suffered.
What is defamation of character?
Snyman[vii] defines criminal defamation as follows:
“Criminal defamation consists in the unlawful and intentional publication of matter concerning another which tends to injure his reputation.”
Unlike crimen injuria, defamation will always involve three parties: the person making the statement (committing the act), the person about whom the statement is made and the one to whom the statement is made.
In terms of criminal defamation, it is neither the person’s bodily integrity nor their dignity that is protected, but rather the person’s reputation.
In civil law, the definition of defamation of character differs slightly in that it is indeed a person’s dignity that is to be protected but said dignity is the portion of a person’s dignity which concerns said person’s reputation (fama).[viii]
The impact on freedom of speech
The right to freedom of speech is protected by Section 16 of the Constitution of South Africa, which reads:
1. Everyone has the right to freedom of expression, which includes
a. freedom of the press and other media;
b. freedom to receive or impart information or ideas;
c. freedom of artistic creativity; and
d. academic freedom and freedom of scientific research.
2. The right in subsection (1) does not extend to
a. propaganda for war;
b. incitement of imminent violence; or
c. advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.
It is notable that propaganda for war, incitement of imminent violence and certain forms of hate speech are already non-protected in terms of Section 16(2) and, therefore, do not require further discussion in this article.
The tension between freedom of speech and the protection of reputation is a recurring theme in South African jurisprudence. The Bill of Rights recognises that freedom of speech is essential for a democratic society, as it enables open and robust public debate. However, this freedom is not absolute and can be limited under certain circumstances. When the statement infringes on the dignity or reputation of another person, the right to freedom of speech will often be limited.
The limitations on freedom of speech
The South African Constitution allows for limitations on freedom of speech under certain circumstances. Section 36 of the Constitution outlines the factors that must be considered when assessing the constitutionality of such limitations. These factors include the nature of the right, the importance of the purpose of the limitation, the relationship between the limitation and its purpose, and whether less restrictive means are available to achieve the same purpose.
The limitation on freedom of speech in defamation cases is generally considered justifiable when false and harmful statements are made without a valid public interest. In crimen injuria cases, the limitation is more complex and fact-specific, with the courts weighing the right to dignity against the right to freedom of speech.
How does the above impact your daily interactions, especially on social media?
South Africans have the Constitutional right to express their views and are even encouraged to do so. However, this right should not infringe the rights of others in a wrongful manner. It is therefore important to be cautious during everyday interactions, whether in person and on social media. Making oneself guilty of crimen injuria or defamation may lead to criminal sanctions and civil liability for damages.
References:[i] Snyman, C.R., Criminal Law, 6th ed., 2015, LexisNexis South Africa, p. 461
[ii] Snyman, supra, p. 461
[iii] Snyman, supra, p. 464
[iv] 1964 (3) SA 319 (T)
[v] 1983 (3) SA 705 (A)
[vi] (CA 165/2008)  ZAECGHC 16; 2010 (1) SA 169 (ECG); 2010 (1) SACR 274 (ECG) (27 March 2009)
[vii] Snyman, supra, p. 467
[viii] LTC Harms, Amlers Precedents of Pleadings, 8th ed., 2019, Lexis Nexis South Africa, p. 116
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