When is a post on Facebook defamatory?

In the 2012 case of H v W, heard in The Johannesburg High Court, Judge Willis had to determine if this post on Facebook 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:

I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified. Remember I see the broken-hearted faces of your girls every day. 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? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, do you still see a man?

The applicant complained that the posting in question published information which portrayed him as: (i) A father who does not provide financially for his family; (ii) A father who would rather go out drinking than caring for his family; (iii) A person who has a problem with drugs and alcohol.

In an exchange of affidavits, the respondent averred that she “posted the posting not to defame the applicant but in order for the applicant to reflect on his life and on the road he had chosen”.

The judge had to 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. The judge 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.”

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 raised two defences to the application, namely that the post was justified as it was true, and fair comment.

Regarding the defence of truth, the judge found that not only must the published words be true as a defence to or a ground of justification for a defamation, they must also be to the public benefit or in the public interest that they be published. He found that “it is neither to the public benefit or in the public interest that the words in respect of which the applicant complains be published, even if it is accepted that they are true”.

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 also found that the posting was unlawful.

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

https://www.facebook.com/help/contact/732748663560891 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”.

2012 case of H v W

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