Written by Natasha du Preez and Nadine Roesch-Prinsloo

28 January 2024.

How Does Online Defamation Take Place and On Which Platforms?

Think twice before naming and shaming when you post, share and comment online, as any defamatory post may have severe criminal and civil consequences in South Africa.

Many social media users worldwide are familiar with various online platforms, such as Facebook, Twitter, Instagram, and WhatsApp. Pairing these online platforms with the constitutional right to freedom of expression creates an easily accessible outlet for individuals to share their opinions, advice, and often integrally intimate parts of their lives with the world at large.

However, what happens when the content posted on these platforms is defamatory and can cause reputational harm or damage to others outside the realm of social media? And will such content be able to be removed if proven to be defamatory?

Online defamation in South Africa is defined as any wrongful, intentional posting/publication of words or conduct relating to another person that injures or demeans their dignity on social media platforms like Facebook, Twitter, Instagram, TikTok, or even via e-mail. These postings/publications may include defamatory words, conversations, photographs, videos, cartoons, messages, statements, and even e-mails.

What Is the Right to Freedom Of Expression?

Freedom of expression is a fundamental right of all South African citizens, promulgated in Section 16 of the Constitution of South Africa, as it is an integral part of a democratic and free society. Furthermore, Section 16 of the Constitution protects all communication aspects, including but not limited to the freedom of the press and media, the freedom to receive or impart information or ideas, and the freedom of artistic creativity. Even though Section 16 protects all aspects of communication, it expressly excludes said protection for certain things, such as propaganda, the incitement of war, the incitement of imminent violence, and the advocacy of hatred based on gender, race, ethnicity, or religion.

 What Is Freedom of Expression and Is It Unlimited In Application?

Freedom of expression allows users to exchange communications globally. All citizens have the right to “the freedom to receive or impart information or ideas and the freedom of artistic creativity”, which creates the wrongful impression that freedom of expression is an absolute and limitless right. This is factually incorrect, as freedom of expression must be balanced against other constitutional rights and common law to uphold the sanctity of the Constitution and public order. When considering online defamation, the courts consider both Section 10, which protects the plaintiff’s right to dignity, and Section 16, which protects the defendant’s freedom of expression.

Therefore, social media users must tread carefully about how they exercise their right to freedom of expression online to avoid infringing on someone else’s rights, which can result in civil or criminal consequences.

 What Is Considered Online Defamation or Cyber Defamation?

Defamation is classified as a delict injuria called under South African Law which can have legal and financial implications for the wrongdoer. Legislation defines online defamation as:

“a publication of words or conduct (behaviour) that causes reputational injury and/or damage to another person, specifically to their reputation or the esteem in which they are held in the community.”

In addition, the high court of South Africa found that a post/publication is considered defamatory if a reasonable person of ordinary intelligence might reasonably understand the words in the publication to convey a defamatory meaning. Furthermore, the post/publication must have been made by a party with the wrongful intent to defame another party and without proper justification.

Can A Publication Be Considered Defamatory If It Is True?

If you publish a defamatory statement, the real question is whether the statement was reasonable and, therefore, justifiable. For example, if the statement was the truth and made for the benefit of the public, or if it was made as a fair comment, you might have a valid defence to a defamation claim.

However, there is a common misconception that only false publications can be defamatory. In South African law, however, truthful publications can also be regarded as defamatory if there is no justification for the publication or if the defamatory publication (albeit truthful) was not made to further the public interest.

Is There a Legal Precedent for Defamation Or Cyber Defamation?

Yes. In one of the most notable precedents for online defamation, Heroldt v Wills (2013), the defendant made a defamatory Facebook post stating that the plaintiff was an unfit parent due to his alleged substance abuse.

The defendant initially declined to remove the postings, arguing that she had the right to freedom of expression, which the court had to balance against the plaintiff’s right to privacy and dignity.

As there was no evidence to support the Defendant’s accusations, the court found that the right to privacy outweighed the right to freedom of expression, and the defendant was ordered to remove the post from Facebook and pay hefty legal fees.

How Do I Prove Online Defamation?

The requirements for proving online defamation are the following:

–             The statement must have been wrongful and intentional: If the publication intended to violate and harm a person’s right to a good name and reputation, the requirements of wrongfulness and intention are present

–             The statement must have been published/posted: In other words, the statement must have been posted to the public on a social media platform. It is essential to remember that publication only occurs once the addressee, for example, your Facebook friend, reads and understands the defamatory nature of the statement.

–             The statement must have been defamatory: A statement will be considered defamatory if, “in the opinion of the reasonable person, the words tend to damage or impair a person’s good name and reputation in the community.”

What Happens If I Accidentally Post Defamatory Content Online?

It is essential to keep in mind that claiming a lack of knowledge of wrongfulness or failing to act when associated with a defamatory post or publication may still result in you being held criminally or civilly liable.

Suppose you make a publication on social media where you did not intend to cause reputational damage but reasonably foresaw that such an outcome could arise; proceed to make the publication anyway. In that case, the publication will be considered to have been made wrongfully and intentionally, and as such, you will be held liable.

Can You Be Held Liable For Someone Else’s Defamatory Post?

Yes, you don’t need to be the author of a potentially defamatory social media post to face the consequences. You can still be implicated if:

  • you were tagged in a post that targets someone else, or
  • you are the admin of the page where the publication was posted.

If you are aware that you have been tagged in a defamatory post and make no effort to distance yourself from it, you could be held equally liable.

Furthermore, omission by a page administrator, for example, to not remove defamatory remarks from their online platform, group, or website after becoming aware of its defamatory nature, constitutes publication by the administrator, and as such, the administrator can be held liable.

Therefore, social media users must be careful about who they associate with online and keep abreast of tags and comments that may implicate them in defamatory content online.

What Should I Do If Someone Posts Defamatory Content on A Page I Manage?

If you manage a group or community, you may be held criminally or civilly liable if others publish defamatory content when “posting”, “sharing”, and “commenting” on your page. An omission to remove such content as a page administrator after becoming aware of it constitutes publication by the administrator, and as such, you can be held liable.

Here are five tips to minimise your risk as an administrator of an online group or community:

  1. Make sure you have group rules that ban defamatory content from the page.
  2. Put a policy in place so that if someone makes a comment that could be construed as defamatory, you can remove or block them from your page to stop that from happening again, as it goes against your rules of conduct.
  3. Re-share the rules often to remind the members how to conduct themselves in the group. This could be supporting evidence should you ever find yourself in a position where you need it.
  4. Monitor the posted contents, block and report the perpetrators, and disable the comments section when needed.
  5. Implement preventative measures as soon as possible to minimise your risk of finding yourself in a position where you are sued for defamation on social media or elsewhere due to a comment or post on your group.

Can A Company Sue Employees for Online Defamation?

It is common for companies to have strict policies against making racist, sexist, or homophobic comments because employees represent the company even when they are not physically present in the office. The CCMA has heard several cases of employees being fired for posting negative information that damages their employer’s reputation or for sharing confidential information about the company’s internal affairs.

In 2011, there was a case where two employees wrote defamatory remarks about their boss to each other on Facebook. The comments were not private, and the employees’ Facebook privacy settings did not restrict access. As a result, the comments were considered public, and the employees were sued for defamation.

Once again, be very careful how you exercise your right to freedom of expression. It is not an absolute as it can be outweighed by the right to have your dignity and privacy respected and protected.

 How Can You Remove Defamatory Content from The Internet In South Africa?

The quickest way to remove defamatory content from the internet is to request that the perpetrator remove it. Should the perpetrator refuse, one can also proceed with a court interdict to request that the court make an order that the defamatory publication be removed.

Another way to remove defamatory content from the internet is by the right to be forgotten rule, which allows people to ask for data about them to be removed.

What Is the Right To Be Forgotten Rule?

The European Union’s right to be forgotten rule allows individuals to request that organisations such as Google remove and delete personal information about them from online platforms where their privacy and dignity rights outweigh the public interest in continued access to the information.

This right was solidified in a European Court judgment in 2014 – regarding a certain Mr Gonzalez, who complained that when internet users searched his name on Google, the search results included links to a news story from 1998 about his outstanding debts. Mr Gonzalez argued that the matter had since been resolved and was now irrelevant.

The Court ruled that Google could, in some circumstances, be obliged to remove links to certain web pages where the information is considered inaccurate, inadequate, irrelevant, or excessive in relation to the purpose of the data, but not simply because it is inconvenient to the subject.

Does The Right to Be Forgotten Find Application In South African Law?

 Every citizen has the inherent right to dignity, as defined by Section 10 of the Constitution. Where another party has unjustifiably damaged a party’s reputation, the Court must intervene to ensure that the defamed party’s right to dignity is protected and respected and that such parties are furnished with the necessary and appropriate recourse.

Furthermore, Section 39 of the Constitution indicates that the Court must consider international law and may consider foreign law when evaluating provisions contained in the Bill of Rights.

Simply put, the South African courts will have to consider international law judgments, such as the judgment described above when presented with a matter in terms of the right to be forgotten. After that, the Court will have to weigh the respective rights against one another to furnish the wronged party with appropriate recourse or remedial action.

It is prudent to mention that if a person has published information that could be harmful or damaging to their reputation, whether or not the damage was intentional or unforeseeable by said party, the court will not furnish the said party with the remedy, namely “the right to be forgotten”.

Our law is unambiguous on the principle that no party is allowed or entitled to benefit legally or financially from its wrongful conduct (negligent or intentional).

Thus, if you are the catalyst for your reputational damages, this recourse will not be available under South African law.

What Legal Resources Are Available to Victims Of Online Defamation?

Have you been named and shamed in a “post” or “comment” online? Any defamatory post/publication may have criminal and civil legal recourses available to victims in South Africa, including:

  1. A civil claim for general damages for injury or infringement of your dignity: A party that has suffered general damages due to defamatory publications can institute a civil claim for damages for injury or infringement of their dignity, such as their reputation and good name.
  2. A civil claim for special damages, such as monetary losses suffered due to the injury or infringement of your dignity. A party that has suffered special damages such as patrimonial losses (monetary losses) as a result of defamatory publications can institute a civil claim for patrimonial loss or damages;
  3. A common law criminal charge of Crimen Injuria.  A common law criminal charge of Crimen Injuria means that the perpetrator unlawfully and intentionally impaired the dignity or privacy of another person.
  4. A mandatory interdict. When no other recourse is available, the party who has been defamed can institute an application for a mandatory interdict, which mandates the wrongful party to remove/block said publications and refrain from such conduct;
  5. A prohibitory interdict. In addition to a mandatory interdict, the party who has been defamed can also institute an application for a prohibitory interdict, which prohibits the party from publishing pre-emptive and/or further defamatory statements with immediate effect;

Online Defamation – Insist on Legal Assistance for Your Matter

From the above, it is clear that social media and freedom of expression are not absolved from delictual liability and legislative scrutiny. It must be understood that nothing in law can ever be absolute or free from judicial intervention. All citizens enjoy equal rights and responsibilities; therefore, one cannot simply infringe on the rights of others in the furtherance of their own.

In the digital day and age, each social media user has a digital footprint that can never be completely erased from the deep, dark corners of the World Wide Web. Thus, you should be mindful of your online publications and think twice before naming and shaming because you might find yourself guilty of defamation!

Contact one of Burger Huyser Attorneys’ specialist online defamation attorneys if you need assistance with your online defamation matter, whether you are the plaintiff or defendant.

 

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE