We are all aware of the terrible position Mrs. Van Wyk went through, the past month regarding her well known photo. An interesting question would be, whether or if she has a claim against the internal person, whom published, leaked or shared the photo from the Whatsapp Hockey Group, to other people whom did not form part of the Hockey Group. A further question would be, does she have a claim against people, whom did not form part of the Hockey Group who re-shared the particular photo and making snide comments regarding the photo?
If one looks at the requirements of defamation, a defamatory remark, comment or publication must be a statement, which is wrongful, which was published with the intent to defame a person. One can then confirm that the publication of the photo, as well as the snide comments made, met all the requirements of Defamation although there are a few other factors which should be eliminated before it can be confirmed that Mrs Van Wyk indeed does have a claim.
DIFFICULTNESS OF CLAIM
The problematic factor which results to the difficultness of Mrs. Van Wyk’s claim, does not only entail the requirements of defamation, or defences against defamation (which is not even addressed in this article), but entails the most important part of institution of any legal action. It consists merely of 3 factors namely, proof, proof & proof. This brings us to the million dollar questions:
- “Whom leaked the photo from the Whatsapp group?”;
- “who republished the photo after it was leaked by the person on the Whatsapp Group?”
If an answer which suffices exists to latter questions, a further factor which should be kept in mind is the fact that a re-publication of the photo, after it was already published by the person whom leaked it, constitutes and creates a new cause of action and therefore a new claim. It is therefore necessary that should Mrs. Van Wyk wish to sue any external person for defamation, the identity of that person should be known as well as proof of such republication.
We will address the defences against defamation in another article, however should the aforementioned be met, the prospect of success with a claim or claims, taken only the aforementioned into account, looks good.
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