Facebook and the Law

Facebook and the Law

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 –

Context

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.” 

 

Marthinus Strydom

 

References: 

www.saflii.org/za/cases/ZAGPJHC/2013/1.html
uir.unisa.ac.za/bitstream/handle/10500/7643/A_Roos_Inaugural_.pdf?sequence=1
dealnews.com/lw/artclick.html?2,1051185,10629690
webtechlaw.com/2013/02/04/johannesburg-high-court-rules-on-facebook-defamation-html/
chili.co.za/News/1939/When-leaving-a-negative-review-can-get-you-sued

How bad businesses kill tourism in small towns

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Good businesses do more to promote tourism in a small town than anyone else. Bad businesses destroy tourism.

Let me sketch a scenario for you. Joe saves the entire year for a holiday and decides to visit your town during the holidays. He arrives with his family full of excitement and anticipation. Before Joe decided to come to your town he researched a number of other options. He spoke to his friends and family and he asked Google as well.

So Joe decided that your town is the place where he will spend his hard earned cash. While on holiday Joe decides to take his family for breakfast. He drives around town and decides to go to Mary’s Coffee Shop. It looks nice and cozy and there are lots of people having breakfast. In no time the expectation of a great family breakfast turns into a disaster. The food is bad. The coffee is terrible and the staff have a serious attitude problem. Clearly Mary has no intention of servicing or keeping customers. What Joe didn’t know is that Mary has never run a coffee shop and doesn’t know a thing about making a good cup of coffee. Mary thought that it will be romantic to own her own coffee shop, but Mary shouldn’t own a coffee shop, ever.

This all sound too familiar don’t you think? It gets worse, because Joe has a number of these really bad experiences in your little town. There are more than 30 coffee shops and restaurants in your town and they all complain that business is bad. They seldom seem to survive past the holiday season. The next season there is another coffee shop that opens where Mary’s Coffee Shop used to be. And so the cycle continues.

What has happened here? In the first place, Joe went home feeling that he has been robbed of his idyllic holiday. The entire experience has left a bad taste in his mouth because of the bad service he received. He tells his friends and his family and instead of your little town turning Joe into a prophet, you have turned him into a terrorist. He is going around telling everyone he knows how bad your town actually is. So Joe never comes back because Joe has many, many choices. Why on earth will he come back to a place where the service is so poor?

In the meantime the towns business chamber hear about these things all the time but instead of acting, they turn a blind eye. Why? Because it’s not in the interest of the business chamber to expose businesses. The chamber collects membership fees and they won’t collect as much if they chase their customers away! So, these bad experiences are carefully swept under the carpet. Everyone in the little town knows that the emperor has no clothes, but they say and do nothing.

Top Twenty changes all that. Joe will in future search on Top Twenty for a place to eat breakfast and he will find those with the high ratings. He finds Susan’s Coffee Shop just off the main street. Susan is passionate about her business and loves serving customers. She has a high rating and many positive reviews. Now Susan gets all the business and the bad coffee shops get nothing. What happens? They don’t survive and some of them close down – for good reason. They shouldn’t have been in business in the first place. Susan on the other hand is starting to make good money and is steadily growing her business.

Bad businesses are everywhere, but in small towns they can cause enormous damage to the tourism industry of a town. Top Twenty ensures that good businesses are rewarded for good service.

top20

Marthinus Strydom, President of Toptwenty shares his special knowledge and insights about rural tourism on his blog at www.toptwenty.co.za. Top Twenty assists small towns and their businesses in the development and marketing of their local business communities.

DSTV didn’t listen. Now they’re going to pay.

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In 1998 I wrote a letter to DSTV and warned them that their arrogance is going to cost them their business. Over the years DSTV has become the poster boy for a company that exploits its customers to the point of extortion. They were riding the wave of first mover advantage. But, instead of building a long-term, sustainable business, they milked us for all they could.

One of the things they did was to charge customers as much as they could. It wasn’t a case of adding a reasonable margin, but instead how much they could get away with. That can work as long as you have the monopoly, but not when you get some competition. The low-cost airlines do the same. They would sell flights for as much as they could, instead of trying to make a reasonable profit margin. That is why a flight from Johannesburg to George can cost twice as much as a flight from Johannesburg to Cape Town, which is twice the distance. It’s exploitation and greed.

Companies that make easy money because they have a monopoly often exploit their customers and are examples of the ugly side of capitalism. They never last in the long term.

DSTV ignored my warnings and continued on their path. In 1999 Netflix launched and today they launched in South Africa. DSTV will not be around in 2025. Their days are numbered. They milked the cow and it’s now dry.

Instead of focusing on innovation and building a long-term, sustainable business by being customer-centric, they just killed the goose that lay the golden egg. Or rather, Netflix came and stole the goose.

Netflix just stole the goose.

DSTV has been warned numerous times about their arrogance. Arrogance in companies is often demonstrated through the way it treats it’s customers. DSTV has by far the worst call center in the country and despite many complaints refuse to change its ways. It’s almost impossible to deal with them and the frustration levels of customers are high, never mind the exorbitant cost of the monthly subscription. The DSTV website is one of the worst websites in South Africa and despite many complaints they continue to ignore their customers. Double billing is rife and I have come to the conclusion that purposeful mismanagement cannot be ruled out. It’s just happening too often.

Again this year, at the beginning of January thousands of customers were incorrectly debited twice. The call center acts as if they were not aware of the double billing, treating their customers as if they are fools. Of course they knew.

DSTV opened the door for Netflix. They realised this a few months ago and attempted to block them by launching Showmax. Unfortunately too little, too late. Netflix now has the first mover advantage and DSTV is trying to play catch-up. With a whole bunch of pissed off customers, I don’t think they’re going to get very far.

It’s going to take a little while for consumers to become Netflix savvy, but its going to happen. When devices become more user friendly and connectivity becomes even cheaper, there will be a mass exodus from DSTV.

Now we just need Netflix to get some of the big attractions in their bouquet, such as local sport, soapies and the like. It won’t be long before you have absolutely no reason to be a DSTV customer.

Arrogance in business is fatal.

R.I.P Dstv.

 

Related posts: 

https://marthinusstrydom.wordpress.com/2015/11/14/the-3-worst-south-african-websites/

https://marthinusstrydom.wordpress.com/2015/09/11/why-why-why/

 

 

 

Vodacom declares dividend as consumers fume

Vodacom declares dividend as consumers fume

Vodacom shares are up by 2% after they declared a dividend of 280c per share.

Headlines earnings per share increased 656 cents for the year ended 31st march 2011. Revenue increased to R61.2bn from R58.54bn as group free cash flow grew 22.4% to R8.83bn.

It’s is staggering to imagine the amount of cash this business generates but quite easy to explain. The number of mobile users in South Africa grew exponentially in the past two years while Vodacom’s investment in infrastructure has remained very low as a percentage of expenses. Exactly how much they are spending on infrastructure development and maintenance remains a bit of a mystery as they don’t disclose the exact numbers. So the way that they make these staggering profits is by signing up customers who desperately need cellphones and then they sweat their assets until their networks and infrastructure almost grind to a halt. They invest in as little as possible to squeeze every last cent of profit from the business so that they can make as much profit as possible and earn multi-million rand incentives at the end of the year.

What’s wrong with that?, you ask. What’s wrong is that today it is impossible to drive from Sandton to Johannesburg without dropping a call four times. It’s impossible to get decent data connections in more than 87% of the country. The cost of the phone calls on our mobile networks is exorbitantly expensive and totally out of line internationally. Vodacom is not the only culprit, but the other cellphone companies as well. The shareholders who will receive this generous payout are all very happy. Happy that they have been complicit in one of the greatest mass exploitations of consumers in the history of this country. Vadacom should be taking their ill gotten profits and re investing it into their infrastructure so that we can receive the services that we are paying for, so that our dropped calls can stop and we don’t have to re-dial twenty times a day, and further bolster their coffers, and so that we can use cellular services for what they were intended, to increase productivity. Every time my call drops I can see in my minds eye how Pieter Uys made another R0,0000001. Every time my 3G connection drops I wonder if I would have a decent 3G connection if I lived in the same street as Mr Uys? I suppose he would have a cellphone tower that works near him.

What is it with this corporate culture? Why is it never enough? Why do you have to literally steal from your customers to make billions when you can make hundreds of millions in an honorable way? I am ashamed of the fact that Vodacom is a South African company and I am ashamed of Mr Pieter Uys and his board. I am ashamed of the Vodacom shareholders. I am disgusted by the wholesale rape and pillaging of consumers in South Africa by Vodacom and companies like them.

Losing sleep

Losing sleep

How many times have you been woken up at 3 in the morning by the beeping of your phone, signaling the receipt of another SMS spam message?

It is happening to me more regularly every week. It seems that every company in the country has jumped on the SMS spam bandwagon, blissfully unaware of the enormous damage they are doing to their brands. Companies that use SMS’s to market their services or products have very little understanding of consumer behavior and obviously don’t give a damn about the retention of their customers.

I am specifically referring to companies that use their own customer databases to perpetrate this evil and not the traditional spammers that use purchased databases to spam people. That is another topic that has been written about a thousand times.

Companies that send marketing messages to their own customers believe they have an inherent right to do so as long as they provide the requisite “Stop to opt out” at the end of the message. These companies, that included the top brands in South Africa, show their ignorance when it comes to electronic and mobile marketing and their total disregard for the privacy of their customers. The mobile service providers are the biggest culprits because they sell these services through the aptly names “WASPS” or Wireless Application Service Providers. Wasps are companies that are appointed by the mobile service providers to send spam. According to WASPA, their association, they don’t send spam, but as far as I am concerned they exist only because of their ability to send spam. They “sting” consumers millions of times a day and make a few cents on each SMS they send on behalf of these “respected” brands.

The Consumer Protection Act unfortunately has no sting. It allows for spam as long as the spammers comply to a few basic rules. Not that a few rules have ever stopped South Africans from doing whatever it is they want to do, whether it’s breaking traffic laws, evading tax, hijacking a few cars or sending spam. Companies think that if they include the opt out message and the customer interacted with them once, even if it was 10 years ago to get a quote, then it gives them the right to invade their privacy. If we want to stop getting these SMS’s then you must send the obligatory reply with “STOP”. This reply obviously costs money. I think the mobile service providers and the WASPS make millions every month from these opt out SMS’s that we are forced to send. What a blummin cheek! It costs me around R0.20 every time I opt out from an SMS that I didn’t ask for in the first place!

Not that the opt out works. I have opted out on numerous occasions just to continue to receive these SMS’s. Only after many phone calls, lawyers letters and threats with the ECT act do the SMS’s stop. And then sometimes they don’t. It seems that my opt out just confirms that I am in fact alive and my mobile phone works and I actually read my SMS’s. My value as a quality recipient of spam has just exponentially increased and the spam not only continues, but increases!

So herewith a short lesson on consumer behavior.

It has been proved through many recent studies that SMS marketing messages work on a very small percentage of consumers. If you send 1000 SMS’s and you get one sale then you may think that your campaign was a success right? Wrong. If your repeat business percentage (the number of customers that are going to buy from you again) is, let’s say, 20%, then of the 1000 customers, 200 of them will purchase from you again sometime in the future. These studies have shown that out of the 1000 people that receive your SMS, around 150 will be so upset that they will make a conscious decision never to buy from you again. 10 of them will actually go to their friends and family and influence them to never to buy from you again. So, you made one sale but lost more than 5 in the process. Not very smart.

Why would people get upset about receiving an innocent marketing SMS from you? Well, because it’s invasive. We use our cell phones for work and personal calls. Mobile phones have become much more than just phones. They are an extension of our lives and many people cannot function without their mobile phones. We need to be permanently “connected” and this perpetual connection has become very personal. My phone is a personal thing. It has my music on, my photographs, my email. It is my space and it is sacrosanct. The SMS that I receive invades that space with the subtlety of a carving knife. Now imagine if I get this SMS at 3am! Why not switch the phone off at night, you ask? Well, because I have a family. My kids are out and about and I cannot switch my phone off. Like many people I have given up with Telkom and land lines and cable theft and only have a mobile phone. Mine stays on through the night, and no way for me to avoid being woken up at 3am with the incessant beeping in my ear. This very morning I was woken up at 3am by 2 SMS’s from a jewelery company and I could not fall asleep again, so I decided to get up and write this article. It’s now 4:44am. Understandably I will never buy from that jewelry store ever again, and that is a promise.

So what am I to do? Today I am going to buy another phone and I am going to give that number to my family. It will become my family phone and I will leave it on at night and switch the other one off. I will become part of the 2 phone brigade.

And guess what? The mobile service providers will just make more money and continue to rape consumers with impunity.

I wonder, how do they sleep at night?

Travel industry shakeup looming

The assertion by the airlines that overbooking is in the interest of passengers is absolute nonsense. Passengers that purchase tickets and do not show have already paid for their tickets, irrespective of whether they fly or not. How is it in the interest of passengers that airlines overbook? The only interest being served with this practise is the interests of the airlines who make more money because they then manage to sell the seat twice.

CPA offers protection to travelers
The Consumer Protection Act (CPA) will address this issue and from April next year airlines will be prohibited from overbooking. Passengers who are “bumped” from a flight will have a big stick to beat the airlines with. The airline will have to refund the passenger the cost of the ticket plus interest and any costs the passenger incurred as a result of being “bumped”. This includes accommodation and car rental.

Anyone in the retail travel industry will understand the stress when called by irate consumers because the airline has cancelled flights or bumped passengers. The consumer has no interest in the airline because they are the client of the travel agent and the travel agent has control over the airline, right? Wrong. The travel agent has zero control over the shenanigans of the airlines. They are a law unto themselves and for many years they have acted only in their own interests. Of all industries I rate the airlines as having the worst customer satisfaction rating. Customer centric is not a term that they understand. Sometimes I am astounded by their arrogance. It is time that things change and hopefully the CPA will be the facilitator of that change.

Overall the travel industry is wholly unprepared for the CPA. ASATA, the Association of South African Travel Agents has been conspicuously silent on this issue and have, in my opinion, failed miserably to educate and inform their members of the consequences of the act. I suspect that quite a few agencies will suffer severely under the act. The fine for not complying is severe and few agencies will have the financial resource to survive. One of the biggest issues is going to be the ability for consumers to file a “class action” lawsuit similar to what is common practise in the US. A group can now collectively sue the agent for misrepresentation, false advertising, incorrect information or advice etc. The consumer will be able to sue the agency for the shortcomings of the hotel or any of the legs of the journey. It then becomes the responsibility of the agency to seek recourse against it’s suppliers. Imagine trying to sue a hotel in China!

The industry needs to wake up. Contracts need to be amended, consultants need to be educated and advertising needs to be reviewed.

Overall and on the balance of things I welcome the CPA and believe that all consumers will benefit. Companies that prepare themselves and act in accordance with the act will have little to fear. Those that don’t such as unscrupulous travel agencies that sell anything to anyone without any interest in the client and airlines that believe they are above the law have lots to worry about. Hopefully they will be out of business soon and assist us to clean up the industry.

My advice? Get informed and get liability insurance quickly, or get out of the industry and buy a hot dog stand.

Marthinus Strydom

702 THE MIDDAY REPORT 10 December 2010 12:25 PM

Protestors move to cyber attacks

Staying with Wikileaks, you’ll be aware that attacks by so-called hacktivists continue on businesses that are perceived to have acted against Wikileaks. Amazon.com is one – Visa, MasterCard, PayPal are others. But Marthinus Strydom, marketing director of the McCarthy Motor Group, says we mustn’t think this couldn’t happen here. His point is that traditional protests have moved into the online world and that has implications for every business of every kind. He told the MR he thinks that SA companies should be aware that as consumers are more online, they will be more vulnerable to this sort of attack. A lot of companies are not aware of what is going on online and should take it very seriously, because consumers can destroy brands. They need to have a strategy around brand protection. Marketing and PR companies need to be engaged in this exercise and take it into the boardroom, see what’s going on and what people are saying about their companies online.

Guest: Marthinus Strydom
Organisation: McCarthy Motor Group
Position: Marketing director
Podcast: www.702.co.za/podcast/podcasts.asp

SA beware of the WikiLeaks ‘cyberwar’

As the unfolding WikiLeaks ‘cyberwar’ demonstrates, traditional protests have definitely moved into the online world. Marthinus Strydom, Marketing Director of McCarthy Motor Group, warns that we need to be aware of the fact that today, damage to companies, people and governments could come from online communities.

“On Wednesday top multinational companies and other organisations withdrew support for WikiLeaks and the result: a “cyberwar” of Internet activists who attacked its “enemies” web sites causing these corporate Web sites including Visa, Paypal and Mastercard, to become inaccessible or slow down markedly,” Strydom says.

“The real issue at heart here is that these organisations underestimated the power of today’s consumers who have become online activists – they either sing your praises or become cyber terrorists – your worst nightmare.

“In South Africa, a case in point is Woolworths attempting to remove a Christian Publication from its stores and being lambasted by an online community therefore having to keep the publication on its shelves.”

“Companies in South Africa need to take heed and plan strategically in terms of the scenarios that can happen online. These powerful super-consumers are able to voice their opinions very quickly via blogs and social media and will merge together for a common cause – as a group they pose a powerful threat to companies and brands.”

Consider the following staggering statistics which is growing daily: there are an approximate total of six-million web users in SA. A total of 14-million WAP users (those who use their mobile to access the web) across all three SA networks. There are 500-million Facebook users in the world – if it were a country it would be the third biggest on earth… in just four years! In South Africa there are three-million South Africans on Facebook and this is growing daily with 50% logging in daily.

“Companies that pull the wool over their eyes and think this can’t happen to them must think again. It is and it will. Consumers now have the same, if not more, marketing power as any organisation’s marketing team and online activists can damage a company, brands or people, within a matter of hours,” he says.

Managing Director of strategic communications company, Livewired PR, Janine Lloyd, concurs: “It is imperative for organisations to understand the power of these super-consumers and strategically consider the impact and reaction from these consumers to their business decisions. This kind of crises should not have happened. Did these organisations engage the communications experts to provide counsel on the impact of the collective decision to withdraw support for WikiLeaks? Probably not. Would the outcome have been any different? Probably.”

“Marketers and business leaders need to get up to speed with the digital world and its enormous power. We need to understand and plan strategically to integrate the digital world into our thinking and actions. Making critical business decisions without consideration or dialogue with audiences online is a big mistake,” she says.

“Understanding that we have little control or power over what consumers say is one of the basic truths in communications today, however companies must learn to engage and consider their online communities. They must even consider changing their business decisions based on the huge negative impact today’s super-consumer can have on their brands, company or people.”