Risk as injury: an alternative interpretation of the South African law of defamation

Jurgens, Francois

Risk as injury: an alternative interpretation of the South African law of defamation

Doctoral Thesis

2019

Abstract

This thesis presents an alternative interpretation of the rules constituting the South African law of defamation. Defamation is typically understood to be a wrong in which the defendant has caused the plaintiff reputational harm. It is argued that it is more justifiable to view the wrong as a wrong of having increased the risk of reputational harm. Defamation law is an instance of state power and it is argued that this alternative interpretation better justifies that exercise of power. In making this argument, the fundamental features of the law are analysed, including what reputation is and why we value it, why it is problematic to view the wrong as being about the causation of reputational harm, and why liability for risk is problematic in the case of negligence but less problematic in the case of defamation. As the risk interpretation is meant to be an alternative interpretation of the existing rules, it is also shown that this interpretation is compatible with those rules, such as the presumptions and defences, and the standard remedial response of damages. While this thesis argues for an alternative interpretation of the rules, it is hoped that this analysis of those rules will shed new light on the law even if the risk interpretation is not accepted wholesale.

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PhD / Doctoral

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