Balancing Freedom of Expression Against Reputation: The case of Defamation Claims and Public Figures

Abstract

Following the growing technological and digital landscape, the expression of ideas, thoughts, and statements, have the capacity to reach a larger audience than initially intended. As a result, reputational damage has arguably become much easier to inflict. This has led to a surplus in defamation claims instituted by public figures – notably United States former president Donald Trump, and Hollywood personalities Harvey Weinstein, and Johnny Depp. As a South African example, former president Jacob Zuma, who has instituted his own defamation claims against the media. This article challenges a public figure’s ability to bring such claims by evaluating a recently recognised species of litigation in South African law, known as SLAPP suits – a term used to describe claims brought under the guise of a bona fide defamation allegation, but with the true agenda being to prevent criticism levelled against a company. This article advocates for this doctrine to apply equally to public figures, and in so doing, undertakes a comparative analysis of the South African jurisprudence on defamation, with that of the USA perspective. This article justifies why public figures have greater means to encroach on freedom of expression in bringing defamation claims and how allowing such claims to succeed, can silence legitimate criticism and prevents matters of public importance from ever reaching the public altogether.