I manage a few Facebook Groups and a number of Facebook pages and I am constantly confronted with the issue of defamation on social media. As social media becomes more popular and ubiquitous the issue around defamation has received quite a bit of public attention. Unfortunately many people still don’t understand how social media works, jurisdiction and how South African law views posts and comments on Facebook.
I have been involved in social media and online marketing for many years and have studied the laws pertaining to privacy and social media in detail as it affects my work on an almost daily basis. What follows is an attempt to demystify the concept of social media defamation. I am not going to deal with privacy issues and will leave that for another article.
The innocuous looking case of H v W which was handed down in the South Gauteng High Court on 30 January 2013 is the best and most recent case we have to determine how South African courts interpret cases of social media defamation. Judge Willis’ 30 page judgment recognises the harm a Facebook post can do to a person’s reputation and throws the weight of the Court behind the person defamed (and who can afford the legal fees). In this particular case the defamation was clear and the applicant won the case.
The law the Court relied on
The lawyers involved in the matter conducted what appears to be fairly substantial research on the law on defamation online and with reference to Facebook. Judge Willis relied fairly heavily on two academic articles by –
- South African Professor of Private Law at the University of South Africa, Anneliese Roos (her article is titled “Privacy in the Facebook Era: A South African Legal Perspective” and was published in the 2012 South African Law Journal); and
- Associate Professor of Law at the New York Law School, James Grimmelmann (his article is titled “Saving Facebook” and can be found in the 2009 Iowa Law Review).
Resolving the tensions between every human being’s constitutionally enshrined rights both to freedom of expression and to dignitas is all about balance. In the case of Le Roux v Dey Freedom of Expression Institute and Another as amici curiae) the Constitutional Court emphasized the need to take into account the context in which a publication occurs.
Similarly, Grimmelmann has referenced the legal maxim de minimis non curat lex which Judge Willis translated as “the law is not concerned with trivia”.
Businesses and defamation
With respect to public figures and businesses, he pointed out that while they enjoy a right to privacy, “[t]here is legitimate public interest in the affairs of public figures” and this means that they may not enjoy the same degree of protection as citizens not in the public spotlight when it comes to defamation online. As Judge Willis put it –
Trenchant commentaries on the performances of politicians as politicians, entertainers as entertainers, musicians as musicians, artists as artists, writers as writers, poets as poets, sports stars as sports stars will generally pass legal muster, even if posted in the social media. When it comes to freedom of expression in South Africa, there are oceans in which to swim and upon which to sail as freely as the wind blows.
A customer of a business will always have the right to publish on Facebook an account of her experience at that businesses. As long as the experience passes the test of defamation then it is not defamation but a review. Reviews can either be positive or negative and negative reviews, if made by a customer, cannot be classified as defamation because it is in the public interest and to the public benefit.
If individuals can be sued for making a negative post about a business, of which they are/were a customer then Facebook, Google, Tripadvisor, Booking.com and many large websites will cease to exist. Reviews have become a de faco means of expressing one’s opinion about a product or service.
The test of defamation
The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words . . . to convey a meaning defamatory of the plaintiff. . . . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’
Referencing one of the justifications for (or defences to) defamation, namely that the defamatory material be true and to the public benefit or in the public interest, Judge Willis drew an important distinction that is worth bearing in mind –
A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The courts do not pander to prurience.
Important points to consider when you feel that someone (not you) has posted something that could be defamatory.
- South African law does not require a person to be the originator of the defamatory content to be held liable – merely repeating or “sharing” a defamatory post is sufficient to constitute defamation;
- a person may be equally liable for another person’s posts where that person knows that they have been tagged in the other person’s post and allows their name to be used, and fails to take steps to disassociate themselves from the defamatory post;
- a series of comments or posts published via social media may have a defamatory meaning when read together, despite each comment or post appearing individually harmless; and
- an apology on the same social media where a defamatory statement has been made may assist in mitigating the damage to a person’s dignity and reputation.
The Truth is On Your Side
Ultimately, you have every right to leave a bad review or make a negative post about a business, as long as you act in good faith and don’t lie. The difference between a legal negative review and an illegal one comes down to libel in many cases: “While defamation laws can vary depending on the jurisdiction, libel is the defamation of a company or individual in written form,” explained TekRevue. “To prevail on a libel claim, the plaintiff must prove that the defendant made a published statement about the plaintiff that was false, injurious, and unprivileged.”