WHEN IS A POST ON FACEBOOK DEFAMATORY?

Our judges and arbitrators have been tasked with applying their minds to issues of defamation via social media.

They must consider our ancient Roman and Dutch laws, juxtaposed against our common law and Constitution, regarding the rights both to privacy and to freedom of expression. A judge has stated that the “social media, of which Facebook is a component, have created tensions for these rights in ways that could not have been foreseen…” He added that “it is the duty of the courts harmoniously to develop the common law in accordance with the principles enshrined in our Constitution.”

Be careful what you post on Facebook, Twitter, LinkedIn or Google+, whether in all innocence or out of malice, as the post may be construed as defamatory.

Defamatory posts at work

There is no legislation explicitly dealing with social media in South Africa and employers must consider other statutes and the common law to determine social media law. These include the Constitution, employment law, consumer protection law and intellectual property law.

The Commission for Conciliation, Mediation and Arbitration (CCMA) has heard many matters where employees post information regarding their employers that is scandalous or damaging to their employers’ reputation.

In Sedick and Another v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA); and Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA) the employees were dismissed as a result of derogatory Facebook status updates. They challenged the fairness of the dismissals at the CCMA. In both cases the CCMA found that the employees were fairly dismissed as their privacy had not been infringed when their employers accessed their Facebook posts as the employees did not restrict access to their Facebook pages and the posting of the information was in the public realm.

Similarly, in the case of National Union of Food, Beverage, Wine, Spirits and Allied Workers Union obo Arendse v Consumer Brands Business, Worcester, a Division of Pioneer Foods (Pty) Ltd [2014] 7 BALR 716 (CCMA), an employee was dismissed following the posting of derogatory comments regarding his employer in contravention of his employer’s IT policy which specified permissible usage. The CCMA held that the employee’s dismissal was fair since the employee had not restricted access to his Facebook page and therefore, he could not rely on his right to privacy in circumstances where his posts brought the employer’s name into disrepute.

Facebook defamation in our courts

In the 2012 case of H v W, heard in The Johannesburg High Court, Judge Willis had to determine if a post on Facebook that a man was a bad father (amongst other things – Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to take responsibility for the consequences of your own behaviour?) was defamatory and, if so, entitled the applicant to an order interdicting and restraining

the respondent from posting any information pertaining to the applicant on Facebook or any other social media, or face imprisonment for 30 days or more.

After considering privacy and freedom of expression issues, the judge affirmed “the principle that the test for determining whether the words in respect of which there is a complaint have a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned. The words of the posting on Facebook which are in issue in this case indeed contain the defamatory meaning of which the applicant complains.”

The respondent was ordered to remove all postings which she posted on Facebook or any other site in the social media which refer to the applicant and to pay the applicant’s costs in this application.

In Crawford v Albu, it was held that in order to qualify as ‘fair comment’, the comment ‘must be based on facts expressly stated or clearly indicated and admitted or proved to be true’.

Judge Willis found that the respondent “has been unable to justify her posting. Furthermore, malice or improper motive by the perpetrator of the comment also acts to defeat the defence of fair comment. The background to the posting, together with the words themselves, indicates that the respondent acted out of malice when she posted the offending comments”.

The judge dealt with the ability to remove a Facebook post (as opposed to a defamatory article in a newspaper or magazine) and stated that:

It is in respect of the remedy where infringements of privacy take place in the social media that the common law needs to develop. The social media form a subset of the electronic media but are not coextensive with it: the social media are all part of the electronic media but not all the electronic media are social media. … Not only can items be posted and travel on the electronic media at a click on a computer in a moment, in an instant, at the twinkling of an eye, but also they can, with similar facility, be removed therefrom. This can also be done at minimal cost. The situation is qualitatively different from the scenario where newspapers have been or are about printed in hardcopy and distributed. The law has to take into account changing realities not only technologically but also socially or else it will lose credibility in the eyes of the people…”.

The respondent contended that the applicant could have approached Facebook, reported the abuse and asked for the posting to be blocked. The judge found that “There is nothing before me to assure me that Facebook would comply with such a request”.

[Currently, Facebook has a Defamation Reporting Form intended for reporting content posted on Facebook that you believe is defamatory under the law or otherwise violates your personal legal rights.]

The judge then found that: “The applicant has been substantially successful inasmuch as he came to court seeking an interdict and has obtained it. He is entitled to his costs. The following is the order of the court: (a) The respondent is to remove all postings which she has posted on Facebook or any other site in the social media which refer to the applicant. (b) The respondent is to pay the applicant’s costs in this application”.

Various judgments show that:

  • 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 himself 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.

A balancing act between the right to dignity versus the right to freedom of expression

In RM v RB 2015 (1) SA 270 (KZP), the mother took to Facebook to criticise the father’s care of their daughter and referred to his use of alcohol and drugs in her posts.

Chetty J sought to balance the Constitutionally enshrined right to freedom of expression and the right to dignity so that:

  • not all defamatory statements are actionable in court and courts will not grant blanket interdicts which will place a severe limitation on freedom of expression; and
  • a final interdict is unlikely to be granted by a court in circumstances where alternative options for relief are available.

Take care when posting on social media as anyone who has contributed to the dissemination of defamatory content – even if you share, like or retweet defamatory comments posted by others. You may be held liable for defamation.

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