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Social media sites – how they are influencing the development of the law

 The impact and influence of social media sites on our lives is becoming ever more apparent. A topic of constant debate is to what extent these sites and our interaction with them can impact our lives, both private and in the workplace.

A common perception is that what is said on social media sites such as Facebook, Twitter and Youtube is considered, for the most part, private; and that these sites are a simple means for people to express their right to freedom of speech, vent frustrations, make comments and banter among friends, without any ramifications and external effect on their lives.

The reality is such that as easily accessible as social media sites are to the individual, they are just as accessible to businesses, companies and firms. It is for this very reason that the world’s professional sectors have had the initiative to join many of these sites as another means to advertise and generate interest around many of the products and services on offer.

The legal profession fell behind the rest of the professional world in terms of putting these social media networks to use. The influence of these networks has however now infiltrated the South African legal profession and system; and our law will hopefully continue to evolve as the world around us becomes smaller due to the influence and accessibility of social media network sites to all.

A recent judgement out of the South Gauteng High Court granted a Facebook user an interdict that the respondent was to remove all postings which she had made to Facebook or any other site in the social media which referred to the applicant, after she insulted him on the site. This judgement sets a precedent which is totally new to our law.

One can be sure that this is just the beginning, and given the ever-increasing popularity, and frequency with which these social media sites are used it is sure to be a good starting point for potential litigants in a similar position. These sites are easily accessible to companies and businesses, which have just as strong a right as you and I, to have their reputation and good name protected.

There have been many instances world-wide where companies have taken disciplinary action against employees and in some cases even dismissed employees for some or other form of libel or defamation towards their employers. The same principles apply, and if a statement or posting adversely affects the interests or reputation of the employer, the author could find themselves in a situation far from the bounds of their expectations at the time of updating a status or posting on a wall.

According to LawSA, the delict of defamation is the unlawful or wrongful publication of a defamatory statement concerning the plaintiff. A statement is defamatory if it has the effect of injuring a plaintiff’s reputation, and this can simply mean any statement that tends to lower the plaintiff in the estimation of right-thinking members of society or what is commonly termed in the eyes of “the reasonable person”.

It is not an element of defamation that the statement should have been false because the defamatory nature of a statement is not dependent on its falsity. Once a plaintiff establishes that a defendant has published a defamatory statement concerning him or herself, it is presumed that the publication was both unlawful and intentional. A defendant wishing to avoid liability for defamation must then raise a defence which rebuts either unlawfulness or intention.

It is therefore not as simple as logging on and venting your frustrations about an employer/colleague/company to a friend on Facebook or Twitter. The individual liability can have consequences unforeseen to the casual social media user. Many companies will do random checks on their employees and an even larger number have taken to pulling up a Facebook profile prior to an interview with a potential candidate for a vacancy. With this is mind it is very clear that that the impact of social media sites is not as private as many of us would hope it to be.

Another striking change came in August 2012 after the Durban High Court judgement in CMC Woodworking Machinery (Pty) Ltd v Peter Odendaal Kitchens, in which Judge Steyn allowed the Plaintiff to serve certain legal documents on the Defendant via the Defendant’s Facebook account.

In terms of the judgement different forms of substituted service are allowed when one is unable to trace a party or unable to communicate with a party. It was said that a private message via a social media network falls in the scope of Rule 4(2) of the Uniform Rules of Court and should therefore be allowed as a valid form of substituted service.

International social media networks are already accepted as valid forums for the service of legal documents and in light of the Durban High Court judgement it is clear that the South African legal system is now also developing accordingly.

Given the ever increasing fact that parties are spread all over the world, the provision for service of legal proceedings according to the traditional methods are no longer, in all matters, reasonable or possible. Because of the change in technology new avenues for service of legal documents have been developed and the legal profession is now in the process of adopting these avenues to enable more effective legal proceedings in the future.

Although there are still some concerns surrounding the new methods, it is now possible for parties to apply to the courts for substituted service by way of a personal message to a party’s Facebook account should the party have an active account.

Abrahams & Gross Inc was recently successful in applying to the Cape Town High Court for an order allowing substituted service of a Divorce Summons via the Defendant’s Facebook account. A first in this court!

Facebook, and other social media networks, are an effective communication tool and can now be used as an accepted alternative to personal service of legal documents. Who could have even conceptualised this when our law was developing all those years ago?

Judge Willis in the Facebook case placed emphasis on the need for the common law to develop in line with changing and advancing technology.

“…The law has to take into account changing realities not only technologically but also socially or else it will lose credibility in the eyes of the people. Without credibility, law loses legitimacy. If law loses legitimacy, it loses acceptance. If it loses acceptance, it loses obedience. It is imperative that the courts respond appropriately to changing times, acting cautiously and with wisdom.”

If you need more information or legal advice on the subject, please contact Abrahams & Gross Attorneys for assistance.

t.  021 422 1323    |    e.   info@abgross.co.za

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