Introduction:
We now live in a world where you can express your feelings or opinion with the push of a button.
It is consequently very easy to comment on a person’s conduct or behaviour or express one’s frustrations about your ex-boyfriend’s new girlfriend or how long the Municipality is taking to repair a burst pipe.
With thousands of social media posts being circulated daily, shared and re-tweeted every day in a matter of minutes, one must be careful what one posts or shares. There can be complex and far-reaching legal consequences.
What is defamation?
Defamation is defined as the wrongful and intentional publication of matter concerning another which tends to injure his or her reputation or dignity.[1]
Defamation occurs where a person’s esteem, status or reputation is diminished in the eyes of the community.
The burden of proving defamation rests with the aggrieved party, who will need to prove the following elements to satisfy a claim for defamation:
- The offending statement must be contrary to the good morals of the community (“contra bonos mores”) and/or must injure the aggrieved party’s reputation, dignity, standing or good name.
- The defamer must have intentionally caused the harm (“animus iniuriandi”). The defamer must know and understand that the statement is likely to cause harm to the aggrieved party’s reputation and then publish same regardless.
- The statement must have been made known to at least one other person. Publication can occur in any form or forum such as speech, online platforms (such as Twitter, Facebook or Whatsapp), or in print (for example, articles or news bulletins).
Can I get into trouble even if I do not publish the statement myself?
You do not necessarily have to be the person who posts the defamatory statement to be liable for defamation or be the original author of the publication.
Just being tagged in a social media post, re-tweeting a defamatory post, sharing or liking a post could render you liable.
In the case of Isparta v Richter,[1] the ex-husband of the aggrieved party was found jointly and severally liable for comments that his new wife had made about his ex-wife on social media because he was tagged in the post on Facebook. The Court found that because the ex-husband was aware of the post, intentionally remained silent and chose not to distance himself from the post, he was equally liable for defamation.
What about my right to freedom of speech?
Whilst the Constitution of the Republic of South Africa does enshrine the right to freedom of expression[2], all South Africans also have the right to dignity.[3] The right to freedom of expression can therefore be limited in certain circumstances,[4] where it is reasonable and equitable to do so, with the aim of restoring the good name of the person who has been defamed.
In the landmark case of Heroldt v Willis,[5] Willis made defamatory remarks on Heroldt’s Facebook page in which she stated that Heroldt was an unfit parent due to his alleged substance abuse. The court ordered Willis to remove defamatory remarks and awarded damages in favour of Heroldt.
Willis attempted to argue that she had freedom of expression.[6] The Court had to balance this right with Heroldt’s right to dignity. In this case, and all relevant facts considered, the Court found that the right to dignity outweighed the right to freedom of expression.[7]
This judgment also created awareness about social media and the possible consequences if people abuse it to defame others.
How to defend a claim of defamation:
An offending statement does not qualify as defamation in our law if:
- The statement is true and in the public interest. The person who published the statement must prove that the statement is true and that the public has a legitimate interest in the statement.
The statement constitutes fair comment. This defence is based on the right to freedom of expression. The person who published the statement must prove that the defamatory statement was a fair comment or opinion (and not a statement of fact) and that a reasonable person would have interpreted it as such.
The allegations commented on must also be true, and the comment must be honestly expressed, without malice.
- Privilege. The statement must have been made on a privileged occasion. In this situation, a certain type of relationship must exist between the aggrieved party and the person who made the statement, for example, an attorney-client relationship.
Consequences of being found liable or guilty of defamation:
If you have made a defamatory statement, you may either be found liable for defamation (in terms of a civil action against you) or guilty of defamation (if you are charged criminally).
A successful civil action for defamation, where the Court finds the person who made the statement liable for defamation, may result in a Court Order being granted against the defamer, ordering that the defamatory statement (s) be removed and/or prohibiting future publication of such statements and/or ordering that the defamer pay the aggrieved party monetary damages.
Certain statements may also violate the aggrieved party’s Constitutional rights which may lead to the defamer facing criminal charges as well, for the crime of crimen injuria (the unlawful and intentional injury to someone’s dignity[8]).
Conclusion:
In conclusion, pause before you publish! Think carefully about what you say online. If it is not factually true, don’t post it. If you are expressing an opinion, ensure that you are basing your opinion on factually correct information and that you lack the intention to defame. Also, be sure to keep track of what social media posts you are tagged in and distance yourself from defamatory remarks.
If you believe that you may have been defamed, obtain legal advice as to your remedies in the particular circumstances of your complaint.
This article is for general information purposes and should not be used or relied on as legal or other professional advice. We do not accept liability for any errors or omissions nor for any loss or damage arising from reliance upon any information contained in this article. Please contact our offices on 031 202 3100 / ca****@ca************.za for specific and detailed advice on this topic.
Written by Candice Sage
[1] Isparta v Richter 2013 (12) SA 243 GNP at para 36
[2] Section 16
[3] Section 10 of the Constitution
[4] Section 36 of the Constitution
[5] Heroldt v Willis 2013 (2) SA 530 GSJ
[6] Heroldt v Willis at para 7
[7] Heroldt v Willis at para 6
[8] Milton JRL South African Criminal Law and Procedure (Volume II) Common Law Crimes (third editions) Kenwyn: Juta 1996 at 492
