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Online Defamation: Can What You Post on Social Media Get You Into Trouble?

Social media is all around us and it has become an integral part of our lives. Whether for business or pleasure, many of us use social media in some regard every day.

According to a study which was done by Search Engine Journal to gather various statistics about social media has found that there are 4.8 billion social media users around the world.

Can a post or comment on a social media platform land you in a lot of hot water? In this article, we will delve into what online defamation means and entails in South Africa.

What is defamation?

Defamation can be defined as the wrongful and intentional publishing of behaviour or words of another person that has the effect of infringing and injuring their reputation, good name, or status.

There seems to be a misconception amongst social media users that because a country like South Africa offers a person freedom of speech it gives them the opportunity to voice opinions without any consequences. However, the courts are catching up with the new technology and have extended the traditional principles of defamation to deal with the new challenges posed by social media.

It is up to the person who was allegedly defamed to prove to the court that publication has taken place and that it was wrongful and intentional.

Therefore it can be said that defamation can only occur if the defamatory statement has been published or disclosed to a third party. Publication happens if the defamatory statement is made known to at least one person (third party). Online publication can occur by posting defamatory statements on a social media platform or on a website’s discussion forum. Publication includes defamatory sketches, photographs or words (this means that an emoji can also be considered to be a publication).

In the case of  Le Roux and Others v Dey 2011 (6) BCLR 577 (CC), the court explained that the test that should be applied to establish whether a publication is considered to be defamatory is a two-pronged test. This means that one would first need to determine the meaning of the publication as a matter of interpretation; and secondly, whether that meaning can be regarded as defamatory. For a court to answer this question, it would have to determine the ordinary and natural meaning of what was published, and how a reasonable person seeing the publication would interpret or understand it.

It is important to mention that publication has only taken place when a third party has read or seen the defamatory statement. It can therefore
be said that the third party whom the publication is intended for has to be aware of the defamatory statement for publication to take place.

The requirement of wrongfulness and intention is deemed to be present once a person has proven publication of a defamatory statement.

What if I like, comment or get tagged in a defamatory post?

In the case of Isparta v Richier 2013 (6) SA 529 (GP), the question was asked whether a person can be liable for a defamatory post which was not made by himself, but in which he has been tagged.

The court held that the person who was tagged knew about the defamatory statement which was made the moment he allowed his name to be
coupled with that of the person making the defamatory statement. This is in line with the established principle that everyone who repeals, confirms or draws attention to a defamatory statement will be held liable for the publication of a defamatory statement.

In the abovementioned case, the person who was tagged in the defamatory post was considered to associate himself with the defamatory post and the court held that he was also liable since he did not take any steps to remove the tag.

Given the principle that everyone who repeals, confirms or draws attention to a defamatory statement will be held liable, it can be said that anyone who likes, shares, or comments on a defamatory posting can also be held liable for the defamatory statement since he/she person confirms and repeats the posting.

What if my post is anonymous?

In the case of Dutch Reformed Church Vergesig Johannesburg Congregation and Another v Rayan Sooknunan t/a Glory Divine World Ministries 2012 (6) SA 201 (GSJ); [2012] 3 All SA 322 (GSJ), a Facebook page was created for a particular campaign, however, the page contained defamatory statements made by anonymous posters. The question of who would be liable for these defamatory statements left on the Facebook page by anonymous posters was asked.

The court held that the creator of a Facebook page will be held liable for the anonymous posts made on the page wall as he has created the opportunity for such defamatory content and is therefore in effect, the publisher of the posts.

Even though there is not a specific procedure in place in South Africa for someone to force a service provider to provide the information of an anonymous user. It is important to mention that firm pressure is placed upon service providers to help a person identify the names and addresses of anonymous users who posted defamatory statements and if service providers refuse to cooperate may be joined to the defamation action as the publisher.

Grounds of Justification

There are several recognised defences (grounds of justification) available to someone who has published defamatory statements.

  • Truth: If the statement is factually accurate and in the public interest, it is generally not defamatory.
  • Fair Comment: To qualify as a fair comment the statement has to be a comment and not a fact and it has to be in the opinion of the ordinary reader; the comment must be considered fair in terms of the boni mores (meaning it should be without malice); the comment has to be a matter of public interest, and the facts on which the comment is based must be substantially true.
  • Qualified Privilege: Statements made in situations where someone has a legitimate right, interest, or duty to make certain defamatory assertions, and the recipient has a corresponding interest in receiving such information.

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As the digital world continues to evolve, understanding the elements of online defamation in South Africa is essential. Responsible online behaviour and the awareness of legal rights will contribute to a safer and more respectful online environment for all.

Please note that the information provided in this blog post is general in nature and should not be construed as legal advice. For specific legal guidance, we encourage you to reach out to our team of experienced attorneys.

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