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

Tripadvisor epitomises new age arrogance

New age arrogance is a really horrid thing. It’s a cancer that started about 10 years ago and it has been growing rapidly.

New age arrogance is when a company such as Tripadvisor resorts to complex forums and other techniques to avoid speaking to their customers. Customers that have problems with their property or business listing on Tripadvisor has no way of resolving their issues or problems and Tripadvisor has become so big that they don’t give a shit. They can lose thousands of customers and it won’t make the slightest difference.

Instead of providing proper customer service, they create support forums that are , you guessed it, managed by their clients! And the incredible thing is that the average customer is such an idiot that he does it gladly, spending hours answering support questions for the “community” for no reward.

Tripadvisor has not one email address listed. No way to contact anyone at the Tripadvisor Empire. It’s actually really pathetic. What makes it worse is that their systems are really poor. They are great at raking in the money by enticing customers to join due to their size, but when it comes to after sales support, they must be in the Top 10 worst customer service organisations on the planet. Google of course takes the number one spot for being über assholes.

Now, other companies are also following suit, the suits and pony tails doing the Macarena in the hallways because they managed to find a way to avoid employing decent support staff – milking their stupid customers for more, whilst actually doing less.

This model will backfire. The Tripadvisor’s and Google’s will perish one day to be replaced by companies that are truly customer centric and service orientated.

I don’t need their crap service and you don’t either. The less people support these parasitic organisations the sooner we will create the space for quality companies to thrive. Companies that appreciate their customers.

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/

 

 

 

The 3 Worst South African Websites

One has to wonder how these successful companies manage to be so pathetic online. It’s astounding that with the amount of money they make and their access to resources, they are unable to manage even the simplest task such as developing and maintaining a usable website. Go to almost any TV channel and you will see their commercials. They tell us how great they are and why we must use their services and then we go to the website that they advertise just to be confronted by broken links, error messages and gross incompetence.

It’s not just annoying but also insulting. We don’t like to have out time wasted and we expect you to get it right, or stop flashing commercials at us around every corner. It’s pathetic.

So what can you do? Fire you IT team for starters. Parade you CIO in front of all your staff and tell them how incredible useless he or she is. That will make me feel better at least. Collectively I have wasted precious hours on your useless websites just to be frustrated and left irritated. Your brand may be strong and it will definitely survive my little rant, but rest assured, you do not have a sustainable business. You have no pride in what you are doing.

So here are the 3 worst websites in South Africa.

#3 – Outsurance.co.za

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This website is sloooooow. It is so slow it will be faster for me to drive to their head office, stand in a queue and wait for a written quotation. Come on Outsurance, with all the hype and marketing why can you not just get this right? It’s not that complicated you know.

#2 – Hippo.co.za

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This is a joke. I fill in all the fields correctly to get a quote and then I’m confronted with a slew of errors. The errors are poorly constructed and you cannot continue after wasting 30 minutes on the site. It claims my ID number is incorrect. Now what? You spend millions on marketing but you can’t manage a simple quoting engine? It’s pathetic. All talk and no substance.

#1 – dstv.com

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And the winner of the most pathetic website in South Africa is… DSTV (again). Don’t even get me started on this one. They have this “self service” section that never works. You have to log in multiple times to get into different sections. Everything is disconnected. Boxoffice doesn’t talk to DSTV and Self Service doesn’t talk to your profile and on and on.

It’s a hodgepodge of rubbish slammed together by a bunch of greenscreen mainframe developers that think HTML is some obscure Italian pasta.

What is your major malfunction DSTV? There is not one single customer that think you have a good website. At what point will someone with half a braincell at DSTV get up and say, “mmmh, there are lots of people that think we’re shit. I think they’re right. We are shit. Let’s re-do this thing we call a website.” No?

How to deal with customer complaints

How to deal with customer complaints

Yes, it’s true. More people complain that compliment. It’s natural human behavior. People complain when they’re upset and seldom compliment good service. Good service is expected. Bad service is not.

Customer complaints are part and parcel of running a business and every business gets complaints, no matter how good they are. The idea is obviously to get as few as possible complaints. 

 Today community communication through social media is ubiquitous. Everyone belongs to some group or forum where they share common interests and it’s easy for them to share their opinion about the service they received at a business. Inevitably they share their bad experiences because they want to either “get even” or because they want to legitimately warn their friends. 

In the past many large companies had call centers and help lines dealing with complaints. Today most companies have social media teams that monitor online chatter about their brand. Some even use complex software to track and monitor online mentions. These teams then respond to complains online ensuring that the complaints don’t spiral out of control and eventually become viral.

Some companies are very good at it while others are notoriously bad at it. The ones that are bad at it are typically still stuck in the old school thinking that if they ignore the complaint then it will go away. The problem with social media is that it seldom just goes away. In fact, it typically escalates into a much bigger problem and if dealt with expeditiously in the beginning the escalation could have been prevented. Companies that are bad at dealing with online complaints typically also just provide bad service. 

 So what must a business do to deal with complaints effectively? 

 You don’t have to be a multinational company with a team of social media experts to deal with complaints effectively. You don’t need complex software algorithms to warn you about online activity. The first and foremost thing you need to do is provide good service.

The reality is that if you provide good service then you will seldom have to deal with complaints. Your purpose is to provide a service to your customers and if they don’t like what you’re doing then obviously you are doing something wrong. How can you know if you are on the wrong track? How will you know if you are overcharging your customers? How will you know if your product or service is crappy? Your cusrtomers will tell you. In no uncertain terms. 

 How do you fix it? 

 By listening and then acting accordingly.

Every company is inside a community. It could be a geographical community or industry. Every company operates inside a community. Find the places where your community congregates online. Join these communities and participate. Listen, read and be watchful. It’s your community and you need to know what they are saying.

If you pick up one complaint about your business don’t stick your head in the sand like an ostrich. Don’t take it personally. Don’t get upset. Don’t become indignant. Every customer has a right to complain if they feel they were short-changed or didn’t receive the service they paid for. It’s their right, guaranteed in our Constitution. In addition it’s legal. 

It’s totally legal for a customer to complain about poor service. In fact the Consumer a Protection Act actively encourages complaining about service issues. 

The only time you, as the business owner will have recourse is if the complaint is obviously defamatory. It can only be defamatory if it’s not the truth. If I say that the hamburger you sold me is too expensive then it’s my opinion and you have no recourse. If I say that it tasted bad, then you cannot sue me. If I say that I found a cockroach in my food and it’s not true and I can’t prove it then I am lying and you can sue me for defamation.

The reality is that most complaints are legitimate. Why would someone bother to complain if it’s not true? 

 So how do you handle it? 

 Once you see the complaint respond immediately. Immediately apologise and offer to correct it. Don’t make lame-ass excuses. Consumers aren’t stupid. Be genuine and apologize. Offer to rectify the situation.

Listen and learn. Don’t be hard-assed. Don’t be bullheaded and fob the customer off by insinuating that they don’t know what they’re talking about. The customer is king and you must respect the fact that they spend their money with you. You are either going to create a prophet for your business or you are going to create a terrorist. 

 Be honest with yourself. If the customer is right and you can change the way you do things then do it. Change your recipe. Reprimand a staff member that annoyed the customer. Change your pricing policy. Improve your service.

By being open minded you will constantly improve and you will receive less complaints. You will have more happy customers. Your reputation will improve and people will notice that you really care about the service you provide. 

Every possible opportunity you have to interact with a customer is a good marketing opportunity. Your goal must be to turn every disgruntled customer into a happy customer. Even if you are responding to a complaint online you are marketing yourself. It’s an opportunity to talk to customers. Isn’t that what business are supposed to do? 

In closing, the excuse that you don’t use Facebook or Twitter or Instagram is not a valid excuse.  These are your tools. They should be your new best friends. If you don’t know how to use these tools then learn. Find a way. 

Ignorance is not an excuse and if you don’t use these tools then you will have to bear the brunt of the brutal immediacy that social media will unleash upon you.

Businesses Beware Of Consumer Activism

Businesses Beware Of Consumer Activism

What a cheek! You know the feeling. You go to a business and all you get for your hard-earned cash is poor service. Afterwards you realize you’ve wasted your time and your money. Your’e annoyed and irritated because you didn’t get what you expected. What do you do?

Some people go back to the business and complain. They tell the manager about the bad service and perhaps the business tries to rectify the problem by giving them their money back. That was what happened in the past but today things are very different.

The digital generation dislikes confrontation. They are connected with the world and their anger and disappointment is voiced through all the social media channels they have access to. Today, people don’t like to confront businesses about their bad service – they Facebook, Tweet, Foursquare, Instagram, Linkdin and Pinterest. If you are a business owner and you don’t know what the hell I’m talking about then you are in trouble.

You see, in the past people didn’t have these outlets for their frustration and they confronted a business directly. Today, by the time a customer has walked out of your shop they have told their average 3,000 connections almost immediately, and these social media interactions are having a much bigger impact than you might think.

A business has one chance to impress a customer. People don’t want to complain anymore in person because it takes too much effort. It’s much easier to bitch in 140 characters and press the send button. The result is almost immediate punishment for poor service. Whether you like it or not, this is the reality of today’s connected consumer.

Consumers have become much less tolerant of poor service. Time is valuable and most people have busy lives. They don’t have time to have protracted arguments with businesses about their service or to give them lessons in customer retention. Consumers give their money to business in good faith and expect good service. Nay, they demand good service.

Businesses that understand this and embrace this new reality actually benefit from it because they do what they are paid to do, give good service, the first time. They ensure that no customer leaves their premises if they’re not happy. They do it right the first time. The result is that they get the positive Tweets and the good social media comments. They get the mentions and 5-star ratings. They get new customers that read the raving reviews.

Here are some interesting facts about how Social Media affects purchasing decisions:

  • Consumers are 71% more likely to make a purchase based on social media referrals.
  • 53% of consumers who said they use Twitter to recommend companies or products in their Tweets, 48% bought that product or service.
  • 15,100,000 consumers go to social media channels before making purchase decisions.
  • 49% of consumers use Facebook to search for restaurants.
  • 74% of consumers rely on social networks to guide purchase decisions.

The immediacy that Twitter offers has made it a firm favorite with consumers looking for fast responses to customer service queries.

Just today I walked out of a restaurant in a small town and before I reached my car all my friends on Facebook, followers on Twitter, connections on Linkdin and followers on Foursquare had read about the good service I received. Many hundreds of people that will visit the town sometime in the future will see my commentary and it will influence their decision to go to that restaurant or not.

Businesses need to take their customers very seriously, much more so than in the past. The digital generation has a zero tolerance for poor service, and rightly so.

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