Facebook, Twitter, LinkedIn and Google+ have become the most effective and immediate way of conveying information. There are, however, some pitfalls that come with being able to communicate instantly with the social media world; chief among these perils is defamation.

The issue of defamation via social media platforms has been an internationally debated topic. South African is no different: our judges and arbitrators have been tasked with applying their minds to issues of defamation via social media.

Defamatory posts in an employment context

Defamation via social media has been the subject of several hearings before the Commission for Conciliation, Mediation and Arbitration (CCMA), particularly where employees post information regarding their employers that is scandalous or damaging to their employers’ reputation.

In the case of Sedick & another v Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA), two employees were dismissed for posting derogatory comments on Facebook about their employer following the CCMA’s finding that the employees did not restrict access to their Facebook pages and, because the posting of the information was in the public realm, its admissibility could not be contested.

Moreover, 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 again 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

The first South African case involving defamation via social media was Heroldt v Wills 2013 (2) SA 530 (GSJ), where an interdict was sought against the defendant for a Facebook post suggesting that the plaintiff was not a “proper” man for allegedly failing to care for his daughters because of “the alcohol, the drugs, the church”. The court found that the post defamed the plaintiff and ordered the defendant to remove all posts involving the plaintiff and also to pay the plaintiff’s legal costs.

In a later case of Isparta v Richter and Another 2013 (6) SA 529 (GNP), the first defendant made various posts on her Facebook wall concerning the plaintiff (his ex-wife). The second defendant (the first defendant’s wife at the time) was tagged in the first defendant’s posts but did not post any comments to these posts. Two of the first defendant’s posts suggested that the plaintiff was a bad mother and permitted an inappropriate relationship between her step-son and daughter. The court found these posts defamatory, and awarded damages of R40,000 to the plaintiff, payable by both defendants jointly and severally. This was despite the fact that only some of the parties’ Facebook friends would have read the defamatory posts.

Among other things, the Isparta judgment indicates 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 themselves 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.

Balancing the right to dignity against the right to freedom of expression

In the recent case of RM v RB 2015 (1) SA 270 (KZP), Chetty J established a limit to which our courts should go to protect social media users. The RM case involved a mother, father and a daughter. After the daughter spent a weekend at her father’s place, 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 held that although courts may order a person to remove defamatory messages from social media, they should not order such a person to refrain from posting future defamatory statements via social media, or in any other way, because not every defamatory statement would necessarily be actionable in court and relief in the form of an interdict or damages is always available to the defamed person. This reasoning appears to be an appropriate balancing of the Constitutionally-enshrined right to freedom of expression and the right to dignity.

The effect of the RM v RB case is two-fold:

• not all defamatory statements are actionable in court and granting a blanket interdict preventing such posts in future 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.

It would be wise to think twice before sharing or posting scandalous content on social media. Social media users should be proactive in controlling their privacy settings and are advised to study their employers’ IT policies carefully.

Source

DLA Cliffe Dekker Hofmeyr – Anja Hofmeyr and Gareth Howard