Social media and defamation

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17 Nov 2015

Social media use has led to numerous law suits both in South Africa and abroad. In the UK, Chris Cairns, a New Zealand cricketer, won a law suit against Lalit Modi, the former chairman of the Indian Premier League, after Modi accused him, on Twitter, of match fixing. Modi was ordered to pay Cairns in the region GBP 90 000 in damages and GBP 400 000 pounds in legal fees – a rather costly lesson for Modi on the appropriate use of twitter.

Sally Bercow’s tweet “why is Lord McAlpine trending *innocent fact*” was found to be defamatory and led to Bercow apologising for her “irresponsible use of twitter” and settling with Lord McAlpine for an undisclosed amount.

Closer to home, there have been various lawsuits in South Africa over defamatory statements made on social media. The first case of this nature involved the sale of church premises which sparked, among others, a Facebook campaign in which the Dutch Reform Church was likened to Judas Iscariot selling out for 30 pieces of silver. The court had no difficulty in finding that statements of this nature were harmful and injurious and should be interdicted  (Dutch Reformed Church Vergesig Johannesburg Congregation and another v Sooknunan t/a Glory Divine World Ministries [2012]).

In Herholdt v Wills, in which the offending post stated: “‘Letter to WH – for public consumption –  I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified. Remember I see the broken hearted faces of your girls every day.  Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to take responsibility for the consequences of your own behaviour? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, you still see a man?”

In this matter, the South Gauteng High Court was called upon to determine a claim of defamation arising out of this comment.

In considering the remarks, Justice Willis had regard to the common law rights to privacy and to freedom of expression which are enshrined in our Constitution but stated that the founders of our Constitution could not have foreseen the tensions that social media have created for these rights. In this instance, these rights were in conflict and the Court was called upon to weigh up the right to privacy against the right to freedom of expression.

The Court reiterated that in our law, the fact that the published statement may be true is not, of itself, a defence. The publication must also be for the public benefit. Our law does not protect salacious gossip.

The Court reaffirmed its obligation to develop the common law in accordance with Constitutional principles and reiterated the need for the courts and lawyers to keep abreast with the pace of technological progress. The Learned Judge pointed out that the “’social’ quality of the social media has legal implications for publication therein (or should one, more correctly, say ‘thereon’).

The Respondent in this case, claimed that the offending post was not aimed at defaming the Applicant. Her purpose in posting such comment, she claimed, was so that the Applicant would “reflect on his life and on the road he had chosen.”  Justice Willis was not convinced. On the evidence before him, he was satisfied that she was unable to justify her post and that she was motivated by malice. In this instance, the Court was satisfied that the remarks were defamatory and that the Applicant’s right to privacy and to good name and reputation had been unlawfully infringed by the Respondent.

“Facebook is fraught with dangers especially in the field of privacy” and therefore the Court agreed that by intervening it may have a positive effect on the use of Facebook. The Court stated that “the tensions between every human being’s constitutionally enshrined rights to freedom of expression and dignitas is all about balance.”

The Court granted a mandatory interdict instructing the Respondent to take down any posts regarding the Applicant on Facebook and any other social media site.

Isparta v Richter was an action for damages. In this case, the offending post “Aan alle mammas en pappas … wat dink julle van mense wat stief tiener boetjies toelaat ome klein sus-sies to bad elke aand . net omdat did die ma se lewe vergerieflik??? This post was followed by the comments “Not a chance” and Oh hell nee sal dit nooit toelaat nie”. The court found that this post was scandalous and suggested that the Plaintiff encouraged and tolerated sexual deviation and paedophilia. Interestingly, the court not only ordered damages in the sum of ZAR 40 000 against the author of the posts, but held her husband equally liable because he was tagged in the posts and failed to take steps to distance himself from the posts.

The most recent case relating to defamatory content published on Facebook is McKenzie v Braithwaite. The offending post Debate: Your ex has your daughter (5) for the weekend and is sleeping at a mates house. They all (about 6 adults) go jolling and your ex’s drunk, 50 yr old girlfriend ends up sleeping with your daughter cause he doesn’t want his girlfriend sleeping in a single bed she can share the double bed with his/your daughter! How would you feel?”

This post led to an urgent application in which the interim relief granted was that the author of the offensive posts was (1) ordered to remove all messages of a defamatory nature, (2) instructed to refrain from posting any defamatory statements about the complainant in the future and (3) instructed to refrain from publishing, making or distributing defamatory statements about the complainant. On the return day, the court confirmed only the first order on the basis that the second two orders went too far. In this regard, the court noted that it should not speculate on what could constitute defamatory statements in the future as not every defamatory statement is actionable as there may be a good defense.

In all of these cases, our courts were called upon to balance the rights to dignity, privacy and freedom of expression.

When using social media platforms it is important to remember that everyone who has contributed to the dissemination of defamatory content may be held liable for defamation. This has serious implications for social media users who frequently share, like or retweet defamatory comments posted by others.

While none of these cases involve workplace interactions they are important as they highlight the risks associated with social media use.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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