In 2017, Abrahams and Gross published an article relating to defamation and the right to recourse, which can be accessed here: http://www.abgross.co.za/defamation-and-right-to-recourse/
This article serves to supplement the theoretical legal framework for recourse for defamation with claims arising primarily from the use of social media.
Promoting hate speech on Facebook
In 2015, the South African Human Rights Commission (SAHRC) accused Sunette Bridges, an Afrikaans music artist, of hosting racial commentary on her Facebook page. It argued that this amounted to hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (the Act). It alleged that it facilitated racism and allowed it to flourish.
Bridges denied that she had ever incited violence or hate speech and that she would continue to exercise her constitutional right to freedom of speech and would work “tirelessly” to expose crimes that “trampled” on the rights of the white minority. But the Equality Court confirmed and declared that the controversial comments posted by other users on her page amounted to hate speech and harassment in terms of the Act, reasoning that such freedom of expression ought not to be aimed at vilifying and spreading hatred against certain groups of people in South Africa.
Bridges ordered to monitor and edit her Facebook page
In terms of the settlement between Bridges and the SAHRC, which was mandated by the Equality Court, Bridges would have to regularly monitor her Facebook pages and remove content that amounted to hate speech, harassment, or incitement of violence. Furthermore, she would have to warn users of the court order, block those who posted offending comments, and put up English and Afrikaans posts distancing herself from hate speech.
Courts see social media differently to traditional media
Courts have historically been reticent to interdict publications in the media due to the conflicting right to freedom of expression. However, it stated that social media is not primarily news media and that it was justified in adopting a different attitude towards it, namely removal of the offending statements.
Page administrators have responsibility for content on their Facebook pages
Often, a number of people are involved in the publication process. As a general rule, everyone who contributes to the publication process may be liable. This may include editors to network hosts. But in the case of Facebook, this may be casting the net of liability too wide. In granting the interdict, the Equality Court’s view was that it is more feasible to focus on the conduct of the wrongdoer than to order Facebook to take down the offensive post. Therefore, administrators of Facebook pages bear an onus in taking responsibility for that which is posted on their pages and deleting what is defamatory. This onus is heavy insofar as extra precautions and vigilant monitoring of the content is concerned, especially where there is little control of what is being posted.
Sharing of defamatory content also makes one liable
In addition to hosting defamatory material on one’s social network pages, it is also important to always be aware that when defamatory material is repeated, both the original and subsequent communicators may be held liable. This is particularly pertinent to ‘sharing’ things on Facebook or ‘retweeting’ Twitter posts. It is not a defence to say the material is already in the public domain.
Some other examples
Ordinary users are just as responsible for defamatory content posted and one should not think that the courts are shying away from granting relief, including punitive damages.
In the case of H v W 2013 (2) SA 530 (GSJ), an open letter from W to H was published on Facebook for public consumption. The content thereof was defamatory in the eyes of the Court. An excerpt is provided: “Remember the broken hearted faces of your girls every day. Should we blame the alcohol, the drugs, the church…”
In the case of Isparta v Richter 2013 (6) SA 4529 (GP), the defendants defamed the plaintiff by posting certain comments on the defendant’s Facebook wall, resulting in an award of R40,000 damages due to the defendants’ unwillingness to retract the defamatory statements or apologise.
In conclusion: be mindful of your behaviour on social media
Studies show that social media will soon be the most commonly used means of communication. Globally, at the beginning of 2018, there were over 2.13 billion monthly active Facebook users with approximately 95% of them accessing the platform via smartphones.
Statements on social media can spread around the globe rapidly and there is no legislation dealing explicitly with social media, yet it permeates every sphere – equality, dignity, privacy, freedom of expression, access to information, right to demonstrate, picket and petition, employment law (dismissal for misconduct), and so on. Always be mindful of what you post and share online.
Think before you speak. Think twice before you write. Think thrice before you share your opinions on Facebook and Twitter.
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The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.