Defamation on social networking sites: Think twice before you make that post, share it or like it &a
A new era
Social media has changed the way in which we communicate. It has created a platform in which many can share their opinions with the touch of an enter key and a click of a mouse. This instant sharing of opinion has left some uncharted waters through which persons now have to navigate. Some are of the view that they can voice their opinions and because it is on social media there will be no consequences. This is one area where the law is catching up, and our old principles established in common law are being applied to ‘new’ technology. Because of social media there is now more than ever, a risk of defamation, the harm of which would be even greater than before due to extent of coverage that material posted on social media may receive, and the ease with which internet publishing may be affected.
A person who finds himself a victim of defamatory posts made on Facebook against him can approach a court for an interdict to remove the defamatory posts. He will also have a claim for damages against the perpetrator, any person who subsequently shared the defamatory post and even persons who merely liked the posts. Juristic persons such as Companies also have a right to a good name, and as such will have the same relief available to them.
Right to freedom of expression
In South Africa, we have the Right to Freedom of expression which is enshrined in Section 16 of the Constitution, "Everyone has the right to freedom of expression...”. This right is of course limited in certain instances, so for example hate speech is not permitted.
The internet has provided a platform on which we have an unrestricted flow of information across national boundaries. This would mean that when we are talking about the right to freedom of expression, we are saying that persons have the right to receive and impart information and ideas across these national boundaries. This right is of course limited, and the limitation will vary from country to country.
Right to freedom of expression vs Right to a good name or reputation
One such area where this right has been limited is in respect of the where someone's reputation is being infringed upon through defamation. One can immediately see that there are two opposing rights, the right to freedom of expression and one's right to a good name or reputation, which is also a right that is protected in the Constitution, under the right to human dignity in Section 10.
What is defamation?
Defamation is the intentional (or in the case of mass media negligent) infringement of another person’s right to a good name. This consists of the publication of words or behaviour that cause injury to that person’s good name or reputation or the esteem that he is held within the community. The laws against defamation are there to protect a person’s reputation, as it is very easy to have one’s reputation ruined, and not so easy to rebuild.
Requirements for a claim of defamation
Anyone claiming to have been defamed would first of all have to prove publication. On the Internet publication could take place in various ways, for example sending someone an email that contains remarks which are defamatory about someone else, making a defamatory statement about someone in a discussion forum or posting a status update about someone on Facebook.
Interestingly, in South African law, every time someone republishes the defamatory content, a new cause of action of defamation arises. In lay-man's terms this would mean that each time the post is shared that would then be a new instance of defamation. This means that it is not only the original poster that can be held responsible for defamation but also those who post thereafter. In this vein, everyone who repeats, confirms or draws attention to a defamatory statement is held liable for defamation. In Facebook terms this means that everyone who “likes” or “shares” the defamatory post can be held liable for defamation, as they are confirming and repeating the post.
The courts approach a two stage enquiry to determine if defamation has taken place. Firstly, the ordinary meaning of the statement made is determined. Secondly, it is determined if the statement is in fact defamatory. If this is the case then the words or behaviour are deemed to be defamatory. Examples of defamatory publications include derogatory remarks in respect of a person’s physical condition, mental disposition, moral character or lifestyle, professional competence, financial position or racial views.
In certain instances the perpetrator may have a ground of justification (defence), some of which are Truth and public interest, Media privilege, Fair comment, Consent, Private defence and Provocation.
The perpetrator must have had the intention to injure with the defamatory statement. If he can prove mistake or that he made the statement in jest he will escape liability.
How the courts have already dealt with instances of defamation on Facebook
Dutch Reformed Church Vergesig Johannesburg Congregation and Another v Sooknunan t/a Glory Divine World Ministries - In this case there were anonymous defamatory posts made on a Timeline of a Facebook page that was created for a particular campaign. As the person who made the post was anonymous, the creator of the Facebook profile was found to be responsible, as he had made it possible for the unlawful content to be published, and was as such seen as a publisher.
Herholdt v Wills - In this case the court granted an interdict in which the Respondent was ordered to remove all the postings that she had posted on Facebook and any other social media site which referred to the Applicant.
Isparta v Richter - In this case the court made an interesting decision. It found that a person who was tagged in a defamatory post could be held liable for defamation if that person allowed himself to be tagged and as they had an opportunity to remove the tag and failed to do so he was associating himself with the defamatory statement. In this case the court awarded damages in the amount of R40 000 as well as an order for legal costs.
Applause Store Publications Limited & Anor v Raphael - Although an English case, it is likely that our courts would arrive at the same conclusion. In this case a fake Facebook profile was set up for one Matthew Firsht which was linked to a Facebook group called “Has Matthew Firsht lied to you?”. This group contained defamatory material in respect of him and his Applause store along the lines of him failing to pay sums of money he owed, that he was not to be trusted and that he represented a serious credit risk. Mr Firsht was successful in removing the false profile and group from Facebook and was awarded damages. Damages were also awarded to his company.
Remedies
A person who finds himself or herself a victim of defamatory posts made on Facebook against them can approach a court for an interdict to remove the defamatory posts. They can also claim damages and any financial loss they have suffered as a result. An additional remedy available is that the perpetrator retracts the defamatory statements and issues an apology.
_________
Contact S de Kock Attorneys should you require assistance or further information in respect of the contents set out in this article at susan@sdekockattorneys.com. S de Kock Attorneys will provide advice in respect of any defamatory content that has been made against yourself or your business, and will be able to provide a workable solution to having such content removed, damages awarded or an apology issued.
Sources:
Information and Communications Technology Law DP van der Merwe et al 2nd Edition
Cyberlaw@SA III S Papadopoulos et al 3rd Edition
Dutch Reformed Church Vergesig Johannesburg Congregation and Another v Sooknunan t/a Glory Divine World Ministries [2012] 3 All SA 322
Herholdt v Wills 2013 (2) SA 530 (GSJ)
Isparta v Richter 2013 (6) SA 529 (GP)
Applause Store Publications Limited & Anor v Raphael [2008] EWHC 1781 (QB)
