People who are behind the compilation of the controversial lists circulating of famous people in the capital, naming them as promiscuous risk being sued for defamation, legal experts have revealed.
The list which has top musicians, music promoters, top business people, socialites, media practitioners and bankers is circulating on social networks, WhatsApp and caused a stir on Facebook and Twitter. “The only possible implication is that the person who is behind the lists he or she can be sued for defamation. That information (on the lists) is very damaging, very damaging to one’s character, to one’s social standing and one’s reputation. There is no doubt about that.
“So the information being circulated is defamatory, I don’t see them raising any defence saying its truth or is of interest. One can raise a defence by saying it’s for public interest but these people are not holders of public offices, whilst people who are prominent are subject to public scrutiny and a fair comment, you can raise a defence of a fair comment in respect of those people to say it’s a fair comment.
“And in any event the public are supposed to know what their leaders are doing but these are not leaders, these people are socialites, business people, but yes some of them the likes of (name withheld), maybe one or two you can say they are prominent, but really, I don’t see that defence applying.
“The lists talk about their private lives and there is no evidence to substantiate that, unless they are able to prove that it is true and it’s really a fair comment, then they can be exempted but in my view, whatever is circulating is defamatory and they are liable for civil defamation,” revealed lawyer Everson Chatambudza.
His sentiments were also echoed by another lawyer who however requested anonymity and he said “those lists are very defamatory in their nature. If you communicate anything that is defamatory to a third party about another and to another, you are liable to defamation.
“And the court may order you to pay damages as demanded by the person whose reputation may be injured or as determined by the courts in the trial. But obviously there are several defences that a person can raise for example truth, the truthful of those claims. For example those who are alleging something that is defamatory can defend themselves that that is the truth, or that is in the public interest and the public has the right to access such information.
“But by its nature if you allege someone is a whore or is promiscuous, yet you have no proof to that effect or you have no proof of the truthfulness then you are liable in delict for defamatory. “It is not criminal law but civil law but it punishes people for making scandalous allegations,” added the legal expert.
Musindo Hungwe revealed that “the lists and their contents are potentially defamatory and as such if the authors and circulators of the list could be identified this would expose them to civil lawsuits for damages for defamation of character.
“This is of course assuming that the information contained therein is untrue bearing in mind that truth for public interest is a complete defence to a defamation lawsuit.”
Dumisani Mthombeni also said that the compilers of the lists risk being sued for defamation but the problem someone cannot claim to be the only person with a certain name in the world.
“So one cannot surely claim kuti ndini ndairehwa. That will be the challenge. Still name and surname can be the same.” One male lawyer who requested anonymity added his voice saying “haisi mhosva iyo, but kungoti it becomes civil suit on defamation, hakusisina criminal defamation ka.
“But pakati defamation apoo you will have to over emphasise kuti it is circulating on the internet it’s already in the public domain. So it’s not like you are authoring it all together you are reporting on what is there already.
“In the case of the person who would have authored, there is nothing criminal saka no dhiri. Police can’t get involved ka because there aren’t any criminal connotations. At worst its defamation.”
One female lawyer revealed that in the case of a media organisation using such information solely relying on a WhatsApp as the source “then you might have to get another source, for example the person who authored it to verify, or you specifically mention that the list is from a WhatsApp circulation otherwise you might expose yourself to defamation charges.
“On the other hand the police will have to investigate first before arresting but they cannot use the article as evidence, it would be hearsay. “They can only use it as a tip off upon which they investigate or lay a trap.” Dambudzo Machaya also added that one can sue for civil defamation like in the case of those who are in politics.
“Such kind of information circulating is not good for their reputation as they represent people. And also people have the right to privacy, like how the other list talks of people who are HIV positive, it is someone’s private information. “That is why you see people who disclose their status do so out of their own will.”