Defamation and Social Media
Think thrice before you write on social media platforms!
In August 2014, Abrahams and Gross published an article relating to defamation, which can be accessed here: http://www.abgross.co.za/defamation-the-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.
Recently, the South African Human Rights Commission (SAHRC) accused Sunette Bridges (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, allowing 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.
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 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.
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.
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 Courts are shying away from granting relief (including punitive damages) – in H v W 2013 (2) SA 530 (GSJ) W published an open letter to H 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 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. However, in Setlegelo v Setlegelo 1914 AD 221 on a similar set of facts, the Court took a different stance with regards a remedy: it found an interdict the most effective relief insofar as there is minimal cost and harmful items can be completely removed.
Studies show that social media will soon be the most commonly used means of communication. The ever accelerating ability of people to access the Internet using mobile devices has only added to the enormous impetus of this phenomenon as is illustrated by the fact that more than 600 million people access Facebook using mobile devices.
Statements on social media can spread worldwide very quickly and there is no legislation dealing explicitly with social media, but it ‘mouses’ its way into every sphere – equality, dignity, privacy, freedom of expression, access to information, rights to demonstrate, picket and petition, employment law (dismissal for misconduct), and so on. One should always be mindful of the way in which opinions and information are shared online.
Think before you speak. Think twice before you write. Think three times before you share your opinions on Facebook.
For assistance or more information please contact:
Basil de Sousa or Tasmin Marlin
Litigation Department, Abrahams & Gross Attorneys
T: 021 422 1323 E: firstname.lastname@example.org