By Franaaz Khan
Johannesburg - During the past few months, the world was inundated with the defamation trial involving the “Pirates of the Caribbean” superstar Johnny Depp and his ex-wife, “Aquaman” actress Amber Heard.
The marathon trial culminated with Depp winning his defamation suit against her. For starters, the couple had squared off in court over an opinion article that Heard wrote for “The Washington Post” in 2018, in which she described surviving domestic violence without mentioning Depp by name.
Depp launched a $50 million (about R795m) lawsuit in damages. His quest for justice was fulfilled when the jury unanimously found that Heard could not substantiate her allegations against him and that she knew her claims of abuse were false when she published her 2018 essay. The jury ruled that Heard acted with actual malice when writing her article, and awarded Depp $10m in compensatory damages and $5m in punitive damages in his defamation suit.
With such a high-profile case as this, the verdict has a ripple effect that provides a welcome relief to male victims that have suffered in silence for decades. For a country like South Africa, which is rated among the worst countries in the world when it comes to domestic violence and with not much done to fight male domestic violence, the Johnny Depp case must have hit close to home. I may be a woman writing this article, but I do not believe that my feminist voice should rule supreme as to not call for fairness and justice for men who are also victims of domestic violence.
It is common cause that for many years, the human rights agenda has had considerable success in drawing attention to the scourge of domestic violence against women, but it has been almost silent on the related problem against men. Social media is exponentially growing with videos and photographs which reveal under-reported, under-discussed, under-documented and under-acknowledged domestic violence against males.
It has become apparent that this is a major issue around the globe that requires urgent attention. Most of domestic violence cases are reported by women, because women are more likely to report it and because the society we live in is more patriarchal. However, this does not mean that men are not victims of domestic violence. Only that they don’t report it, sadly.
Men, know your rights!
In terms of the Domestic Violence Act 116 of 1998 and the Protection of Equality and Prevention of Unfair Discrimination Act, domestic violence takes on many different forms. In terms of Section 1, the harm that is defined as domestic violence includes forms of abuse such as psychological or emotional, harassment, intimidation, and stalking.
Furthermore, in terms of this section, emotional, verbal, and psychological abuse refers to a pattern of degrading or humiliating conduct. Section 7 allows for a protection order to be issued to prohibit the commission of any act constituting domestic violence or enlisting the help of another person to commit any such act.
Despite the Act focusing on violence against women and children, the definition in respect of the complainant is not restricted to such persons and would include male victims of domestic violence as well. Penalties in the form of a fine or imprisonment occur for contravention relating to protection orders. The Promotion of Equality and Prevention of Unfair Discrimination Act prohibits instances where a person may publish, propagate, or advocate words that have the intention to be hurtful or harmful.
In addition to the welcome criminal relief, civil remedies compensate those who have been wrongfully harmed by the culpable conduct of others. The civil remedy of delict offers such relief. Delict allows for victims to seek financial compensation for the harm that they have suffered by the perpetrator.
It also expresses society’s views on what it considers acceptable behaviour and what it does not. Researcher Phumelele Jabavu posits that at the heart of the delictual principles lie society’s legal convictions, or boni mores, which include legal and public policy considerations as well as constitutional rights and norms. Public policy considerations are not static and continue to develop over time. So, if you find yourself in a Johnny Depp conundrum, the civil remedy of defamation may come to your rescue.
Defamation is concerned with protecting the fama (the good name or reputation) of both natural and juristic persons. A victim would have to prove that the defamation was (i) wrongful and (ii) intentional and (iii) publication of (iv) defamatory material that (v) refers to the plaintiff. A person’s reputation refers to the good name the person enjoys in the estimation of others, that is, what others think of that individual as a person.
The Constitution protects reputation via the right to dignity, and courts have indicated that the right to dignity includes the right to reputation. The law of defamation seeks to protect a person’s right to an unimpaired reputation or good name against any unjust attack.
In doing so, the right to reputation is often pitted against the right to freedom of speech and expression. It follows therefore, that defamatory conduct that infringes the dignity of a man or anyone for that matter is not only contrary to South African common law but also to the Constitution because it infringes a person’s dignity.
Dr Franaaz Khan is Senior Lecturer, Department of Private Law, University of Johannesburg.