The rapid growth of Facebook and other social media sites has revolutionised politics, economics, and every aspect of communication and technology, and South Africa has been no exception.  In this respect, our law has been forced to adapt to stay relevant.  The situation that has arisen is not one that is easily navigable, not least because our legal system is based on laws and precedents derived before the advent of social networking. 

So just what is defamation?

For purposes of this article, a brief discussion of the law of defamation is necessary.  Defamation involves the clash of two fundamental Constitutional rights – that of human dignity/privacy and of freedom of expression.  In order to prove defamation, a plaintiff must show that there exists a publication which is defamatory, the publication refers to him, and that this has been published.  Where the plaintiff is not directly referenced, he may still show that the publication indirectly refers to him by leading the appropriate evidence.  If the matter is found to be defamatory, there are rebuttable presumptions that the publication is unlawful and that the publisher acted with intention to injure.  If the aforementioned elements are shown, onus shifts to the defendant to justify his actions.  Justifications include truth in the public interest and reasonable publication by the media. 

Facebook has adopted Community Guidelines which, for example, prohibit posts containing hate speech, and, if posted, such matter is subject to removal by Facebook administration.  The issue herein is that the post will be published for a period of time before it is removed.   To this effect, users in South Africa had carte blanche to post at will and, as pages are controlled by the individual concerned, they are at liberty to decide what they share.  The judgments of Herholdt v Wills and Isparta v Richter have changed this position.

In Herholdt v Wills, Judge Willis ordered a Facebook user to remove defamatory posts made about the Defendant in the matter.  Despite the argument that the Plaintiff ought to have taken up the issue with Facebook itself, making use of its violations policies, Judge Willis was of the opinion that, in respect of infringements, the courts ought to take an active stance against users, as opposed to a stance against Facebook, and that such an approach would be more effective in curbing wrongdoing. 

It was further noted that, to qualify as a defence in our law, it is insufficient that the published words be true, and that it must also be to the public benefit or in the public interest.  Judge Willis reiterated that “The courts do not pander to prurience,” and that what is interesting to the public is not necessarily the equivalent of ‘in the public interest’.  Concerning fair comment, the matter in question must be admitted or proven to be true and that, should there be evidence of malice, the defence will cease to stand.

In addressing concerns that his decision would open the court’s doors to countless defamation claims, the learned judge cited the maxim de minimis non curat lex (the law is not concerned with trivia) and Harms JA in National Media Limited v Jooste , where it was stated that, as with American jurisprudence, whether a matter is subject to protection must be assessed with regard to reasonable sensitivity, not hypersensitivity.

Nevertheless, it is arguable that the aforementioned judgment paved the way for the plaintiff in Isparta v Richter.  In this case, the wife of the plaintiff’s ex-husband posted a series of statuses which referred to the plaintiff, in which she tagged the plaintiff’s ex-husband. 

As to the offending posts, the first referred to the plaintiff by her first name only, making public reference to conflict between the two women.  Judge Hiemstra found that it was not necessary to use the plaintiff’s surname, as the facts of the case revealed that persons who read the post connected it with the plaintiff.  In finding the first post to be defamatory, the learned judge noted that “Although the first message does not constitute serious defamation, publication thereof on her Facebook wall was gratuitous and with the intention to place the plaintiff in a bad light.”  As previously mentioned, regardless of the truth of a statement, where it is published with malice, it will be deemed defamatory. 

The second post did not refer to the plaintiff at all, but blatantly implied that the plaintiff allowed her teenage stepson to bathe her young daughters, creating an image which Judge Hiemstra deemed “scandalous to the extreme”, creating the impression that the plaintiff encourages sexual deviation, including paedophilia. 

Although a direct reference to the plaintiff in the second post was absent, when the post was read with reference to previous posts, there was no doubt as to whom the post referred.  The court made it clear that, where the facts of the case called for it, previous publications would be considered.

In a succinct application of the laws of delict, the court found that the first defendant’s posts were individually and collectively defamatory.  As to his rationale in finding the second defendant jointly and severally liable, he said only the following:

“The second defendant is not the author of the postings.  However, he knew about them and allowed his name to be coupled with that of the first defendant.  He is as liable as the first defendant.”

Regardless of whether one lauds or criticises this decision, the fact that it has the potential to upset an entire system cannot be disregarded.  In this case, Judge Hiemstra ordered that the couple pay the Plaintiff R40 000 in light of the nature of posts on Facebook – a medium which South Africans largely view as a no-holds-barred forum.  

Freedom of expression, like other liberties accorded by the Bill of Rights, is not immune to limitation.  Judge Willis has said, “When it comes to freedom of expression in South Africa, there are oceans in which to swim and upon which to sail as freely as the wind blows.”  However, the judiciary has extended its arm to expression on social-networking sites. 

To conclude, what people believe to be a platform for self-expression without restraint is now subject to the laws of defamation for this time, regardless whether the public agrees or not.  Users of social networking sites must be exceedingly careful not only with regard to what they post, but also with regard to the posts of others which may include them.  The era of unfettered freedom on social networking sites has come to an end – you will be judged by your Facebook page.

Written by Safee-Naaz Siddiqi – Candidate Attorney, Adams & Adams

Notes:
1 National Media Ltd. and Another v Jooste (335/94) [1996] ZASCA 24