• The Kaplan Team

LET'S TALK Defamation on social media

Updated: Oct 14, 2019

Social media has become a strong presence in our day to day lives, being the most effective and immediate way of conveying messages, status updates, tweets and the occasional selfie. With the various platforms of communication, one has to be careful about what one posts on social media.

The powerful presence of social media in South Africa has caused our judges and arbitrators to apply their minds to the rising number of defamation matters on social media. As South Africans, we are entitled to freedom of speech within certain limits. One has to be aware that social media uploads and comments might have certain legal consequences.


HATE SPEECH IN THE EQUALITY COURT

The Constitutional Right to Freedom of Speech does not promote nor does it extend the propaganda of war or advocacy of hatred that would in any way amount to hate speech, harassment or the incitement of violence.

This was the position in 2015 when the South African Human Rights Commission accused the Afrikaans music artist, Sunette Bridges of posting racial comments on her Facebook page. The court held that it facilitated racism and allowed it to flourish. Bridges denied all allegations and stated that she would continue to expose crimes that affect the rights of the white minority.

The Equality Court held that the controversial comments posted by members on her page amounted to hate speech and harassment in terms of the Act, and stated that such freedom of expression should not be aimed at defaming and spreading hatred against specific groups in South Africa. Bridges was ordered to continuously monitor her Facebook page and to remove all defamatory content.


DEFAMATION IN THE CCMA

Several matters have come before the Commission for Conciliation, Mediation and Arbitration (CCMA) in which employees posted content on social media which was damaging to their employer’s reputation. The CCMA found such posts to be fair grounds for dismissal.

In the matter between Sedick & another v Krisray (Pty) Ltd, two employees were dismissed on the basis that they posted derogatory comments on Facebook about their employer. The admissibility of these posts could not be contested as the Court held that the employees did not restrict access to their Facebook pages and that the information was posted in the public realm. As a result, their dismissal was viewed as fair.

In the case of National Union of Food, Beverage, Wine, Spirits and Allied Workers Union obo Arendse v Consumer Brands, Worcester, a Division of Pioneer Foods (Pty) Ltd, the Court found the dismissal of an employee to be fair since the employee had not restricted access to his Facebook page and could not rely on his right to privacy in circumstances wherein his posts brought the employer's name into disrepute.


DEFAMATION IN CIVIL MATTERS

In the case of Isparta v Richter & another, two Defendants were ordered to pay the Plaintiff an award of R40 000.00 for various posts posted by the First Defendant (The Plaintiffs ex-husband) on the Plaintiff’s Facebook wall. The Defendants’ unwillingness to retract the defamatory statements or apologise played a role in the award made. The First Defendant tagged the Second Defendant (First Defendant’s current wife) in all of the concerning posts. The Second Defendant did not post nor did she reply on these posts.

What is important to note in this judgment is that one can be held equally liable for another person’s post if you are aware that you have been tagged and allow your name to be used without dissociating yourself from such defamatory post.

The Isparta judgment indicates further that an apology on the same defamatory post may assist and be seen as a mitigating factor to the damage of a person’s dignity and reputation.


TAKE CAUTION AND THINK BEFORE POSTING OR SHARING

It is important to note that when defamatory material is repeated, both original and subsequent communicator may be held responsible. This would refer to the “sharing” and “retweeting” of posts and is seen as sufficient to be defamation.

In the Sunette Bridges matter, the Court stated that social media cannot be compared to news media and as a result, it is justified in removing any offending statements. As a general rule, all persons involved in the publication process, such as page administrators may be held liable. Facebook administrators have a duty to monitor the content posted on their page and to remove defamatory content.

The balance between the right to dignity versus the right to freedom of expression was addressed in the matter between RM v RB where Chetty J established that although a court may grant an order, compelling a person to remove a defamatory statement from social media, they should not order such a person to refrain from posting defamatory statements in future.

This judgment indicates that not all defamatory statements are actionable in court and thus provides a balance between the right to dignity and the right to freedom of expression. It would be advisable to monitor your posts on social media and to control your privacy settings.






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