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

Facebook Faceoff – citizens unite!

Facebook Faceoff – citizens unite!

The power of Facebook is no more evident than in the role it played during the recent revolts that toppled governments in Tunisia and Egypt. Social media has become a platform for political lobbying as was demonstrated with the Barak Obama’s presidential campaign in 2008, and more recently through citizen mobilisation. These two opposing camps are heading for a faceoff.

The recent Tunisia and Egypt uprisings were only the beginning, Facebook pages and groups have been setup to mobilise protesters in Algeria, Bahrain, Morocco and Syria with Twitter protests extending to Algeria, Bahrain, Iran and Yemen last month.

Already people are at risk from governments looking to hunt down dissenters as was experienced in Tunisia after government officials used a virus to obtain local Facebook passwords.

The question is will social media companies be able to protect the human rights of citizens from governments? Will governments flex their repressive muscles and force Facebook to capitulate? It seems not as the United States’ Obama administration announced a new policy on Internet freedom, intended to help people get around barriers in cyberspace while making it harder for autocratic governments to use the same technology to repress dissent.

According to the New York Times, “The State Department plans to finance programs like circumvention services, which enable users to evade Internet firewalls, and training for human rights workers on how to secure their e-mail from surveillance or wipe incriminating data from cellphones if they are detained by the police. The department has also inaugurated Twitter feeds in Arabic and Persian, and soon will add others in Chinese, Russian and Hindi.”

It remains to be seen whether this stance will be overruled should the US face such an ‘uprising’, not of its citizens but from its enemies.

Imagine this: Islamic activists mobilising on social media to co-ordinate a synergistic movement against the West? When you have freedom of speech and allow people of all nations to do what they want in the online world (except in countries like China, and Iran, which have restricted access), governments have absolutely no control. And governments are all about control. In this hypothetical case, can you see the US, and its security divisions, sit back and watch a threat mobilise on social media and do nothing about it? Absolutely not.

The argument is that social media can be a force that leads to democratic change, but cannot by itself bring down repressive regimes. Well that is the view by the West, however recent events in Tunisia and Egypt show otherwise.

It will be interesting to see how social networks will beef up security to protect its users and even help its users who trust them explicitly.

In South Africa, while the internet pool for social network politics is small, it certainly is not dull with the DA and ANC squaring off in what can only be described as petty squabbling.

More social media theatrics in South African politics reared its head with the Solidarity vs.  Jimmy Manyi, Spokesperson for the ANC and President of the Black Management Forum issue. Solidarity, a predominantly white union group, released comments Manyi made about coloured workers over a year ago on YouTube, just in time for the upcoming municipal elections. The DA quickly jumped on this bandwagon uploading on YouTube Manyi’s comments on Indians. And so it goes on.

While the Twitterverse may be alive with political party messaging and inter party jibes, there is a whole nation of young people who are accessing social media on their phones or through the internet and it is a matter of time before the waves of dissent hit our shores.

Marthinus

Wikileaks and freedom of speech

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According to Mark Zuckerberg’s law information on the Internet will double every 18 to 24 months. The founder of the social media giant Facebook probably understated the growth of information, especially after the latest escapades of Wikileaks with the publishing of 251,287 United States diplomatic cables. The impact of these leaked documents have reverberated throughout the world and caused a freedom of speech conundrum.

WikiLeaks is an international non-profit media organization that publishes submissions of otherwise unavailable documents from anonymous news sources and leaks. Its website, launched in 2006, is run by The Sunshine Press. Within a year of its launch, the site claimed a database that had grown to more than 1.2 million documents.

According to Wikipedia, “WikiLeaks has described itself as having been founded by Chinese dissidents, as well as journalists, mathematicians, and start-up company technologists from the United States, Taiwan, Europe, Australia, and South Africa.” It has been a long time since there has been such a polarization of opinion over their motives, the quality of their information, the motives of their sources and about freedom of speech.

Although WikiLeaks consists of mostly unclassified documents there have been allegations that many people could die as a result of the leaks, primarily due to revenge attacks from Muslim extremists. Some of the names mentioned in the documents are purported to be the names of informants and spies.

Julian Assange - WikiLeaks

WikiLeaks is run by Julian Paul Assange, an Australian citizen. He calls himself the editor-in-chief and makes all the final decisions about what is published or not. Apparently he decides if the documents are safe to publish and if any person or people will be in danger due to the publication of the documents.  The US State department insists that governments should be able to have “private” conversations and that the leaking of the diplomatic cables is a violation of that right. Assange however claims that these documents expose the gross human rights violations committed by the US government in their fight against terror.

The question is whether the publishing of these documents are in the public interest or not. In my opinion the attempts by the US, British and Australian governments to shut WikiLeaks down and arrest Assange is the beginning of a very disturbing trend. The government doesn’t like what is being said and their response is to shut you down. Clearly that is a violation of freedom of speech. US supreme court justice Sonia Sotomayor has said the court is likely to have to rule on the issue of balancing national security and freedom of speech due to WikiLeaks posting a cache of US military records about the Afghan war. Her comments came in response to a question about security and free speech by a student at Denver university. The judge said she could not answer because “that question is very likely to come before me”. She said the “incident, and others, are going to provoke legislation that’s already being discussed in Congress, and so some of it is going to come up before [the supreme court]”.

There is no question that WikiLeaks and in particular the leaking of this large cache of documents, is going to radically change journalism. The debate about freedom of speech is going to continue. Right or wrong, the website generated such an enormous amount of traffic that it’s just a matter of time before another 1,000 “WikiLeaks” pop up. The advertising revenue is just too attractive. Information and especially secret information is highly desirable and generates enormous interest and traffic. The Internet has once again proven that it cannot be controlled. For the time being WikiLeaks.org has been shut down but I am sure it’s going to pop up somewhere and I am sure this kind of information is going to continue to be published and distributed online and many people are going to make a lot of money from it.

It’s less about “freedom of speech” and more about “freedom of information”.