If you see 25 donkeys, just turn the other cheek

The origins of a claim for an infringement of personal rights where there is no physical injury dates back to the original Roman Twelve Tables of about 450 BCE.

It was a claim for injuria and, at the time, damages could be claimed for a slap in the face. Originally, the penalty for this injuria was 25 asses. That may have been a large penalty in 450 BCE but Aulus Gellius (who died in 180 AD) commented that, by then, it was hardly an amount to discourage people from injurious behaviour. He mentions a wealthy man who amused himself by slapping the faces of strangers and having his closely following slave presenting the surprised victim with 25 asses.

Actions for injuria are most often encountered nowadays in defamation suits. Someone whose reputation has been harmed

PATRICK BRACHER

can sue for general damages for hurt feelings, which is solace in the form of money.

It is restorative in that it recognises the harm done and requires money to be paid; but is in no sense compensatory.

It is the best a court can do to recognise the harm.

General damages, in the words of Roman law, achieve honourable amends rather than profitable amends. It is therefore a pity we have not embraced the right suggested in a 2011 Constitutional Court judgment to be able sue for a public apology where that is the most effective way of restoring dignity. Currently, genuine contrition, an immediate public apology and retraction may allow the wronged party to reduced damages. It is not a defence in itself.

In November 2022 the Constitutional Court, deciding an issue debated by lawyers for generations, found that a defamed trading corporation may sue for general damages to protect its common law right to reputation. Many have argued up to now that a corporation, unlike a natural person, does not have hurt feelings. Because general damages are restorative and not punitive, a trading corporation may sue for general damages for an attack on its valued public reputation.

The judgment has implications for a corporation embarking on a SLAPP suit, namely a strategic lawsuit against public participation, intended to discourage criticism about an issue of public concern.

The principle was decided in relation to three defamation actions brought by a mining corporation against a number of environmentalists who allegedly defamed the corporation. The court commented that large corporations play a vital role in communities and in the affairs of the economy and politics. But freedom of expression, including the freedom exercised by environmental activists, also has an important role to play in the health of the nation.

The Constitutional Court judgment did not look at the merits of the case before it. It was deciding the principle. This is no suggestion therefore that this action is a SLAPP suit. Whether it is or not, it is not important. What is important is that the court qualified a trading corporation s right to sue for damages in an important respect, because of the chilling effect on free speech such an action may have.

The corporation s right to sue to protect its reputation is not sourced in the constitution, whereas freedom of expression is said to be the life blood of a vibrant democracy . Trading corporations will not be given an automatic right to general damages where the criticism is part of public discourse about matters that affect all or many of us, and are of grave public concern,

THE COURT SAID LARGE CORPORATIONS PLAY A VITAL ROLE IN COMMUNITIES AND IN THE AFFAIRS OF THE ECONOMY AND POLITICS such as damage to the environment.

Where the defamatory matters form part of that public discourse, the trading corporation may not be awarded general damages. This will have, and was no doubt intended to have, a cooling effect on the litigious enthusiasm of corporations who are criticised when engaging in matters of public concern.

While this is a welcome restraint on defamation actions by trading corporations, it does make it difficult to decide in advance whether the courts discretion will be exercised one way or another. From now on, before corporations look for 25 asses for a slap in the face, they will have to decide whether they deserve a public slap or not.

● Patrick Bracher (@PBracher1) is a director at Norton Rose Fulbright.