From Posts to Courtrooms: Defamation on Social Media

Freedom of Speech vs. Defamation

As per DP van der Merwe in Information and Communications Technology Law (2021), when evaluating issues related to freedom of speech on social media, courts have acknowledged the complex nature of online expression. The South Gauteng High Court has noted that “expression may often be robust, angry, vitriolic, and even abusive.” Each case must be examined in its context, considering the nature of the debate, the individuals involved, the language used, and the content published.

Principles of Defamation Law on Social Media

While the foundational principles of defamation law remain unchanged, their application to social media cases has unique aspects. One crucial principle is that anyone who repeats, confirms, or draws attention to a defamatory statement can be held responsible for its publication. This means that users who “retweet,” “like,” or “share” defamatory content may also be liable for defamation.

In the case of Isparta v Richter 2013 (6) SA 529 (GP), the court addressed whether an individual could be liable for defamatory posts made by others but linked to them through tagging. The court found that if a person is tagged in a defamatory post and fails to remove the tag, they can be seen as associating with the defamatory statement and held liable.

In the case of Dutch Reformed Church Vergesig Johannesburg Congregation and Another v Sooknunan t/a Glory Divine World Ministries [2012] 3 ALL SA 529, this case involved a Facebook page created for a specific campaign, which included defamatory messages from anonymous posters. The court ruled that the creator of a Facebook profile is responsible for posts made on their profile wall (or Timeline), thus holding them accountable for defamatory content posted by others.

Evaluating Social Media Evidence

When evaluating social media evidence, context is critical. In Heroldt v Wills 2013 (2) SA 530 (GSJ), the court concluded that the background to the posting and the words themselves indicated malice, thereby failing the defence of fair comment. This case illustrates that a single post may not be defamatory on its own, but when considered with other posts, it might be.

Emojis and Defamation

In our visually driven society, emojis have become a popular means of communication on social media. Although their use is relatively new to South African law, emojis can convey various emotions and messages, often subject to multiple interpretations. As per DP van der Merwe et al, determining whether emojis are defamatory involves interpreting them within context, similar to hashtags and “like” buttons. Emojis, while fun and expressive, can lead to unintended consequences.

Fake Social Media Accounts

Furthermore, according to DP van der Merwe, fake social media accounts, particularly those made for impersonation, can inflict considerable damage. These accounts may share defamatory content that harms the reputation of individuals or companies. Legal action against the impersonators can begin by identifying them through the social media platform, followed by pursuing defamation claims.

Remedies for Defamation

Given the rapid spread of digital material on social media, defamation can quickly cause extensive damage. A person who has been defamed can seek an urgent interdict to remove defamatory content and prevent further postings. For damages claims, the process involves pursuing an action rather than a motion.

Interdicts

An interdict can be temporary or final, aimed at preventing the publication of defamatory material. The requirements for a temporary interdict include a prima facie right, a well-grounded apprehension of irreparable harm, a balance of convenience, and the absence of other satisfactory remedies. A final interdict requires a clear right, actual or threatened infringement, and no suitable alternative remedy.

Courts are cautious about granting interdicts that might infringe on free speech, favouring actions for damages instead. Prior restraint on free speech is generally not preferred, except in exceptional circumstances.

The principles of defamation law are fully applicable to social networking sites. Users must be aware that their online activities, including sharing, liking, and tagging, can have legal consequences. If you find yourself facing defamation issues on social media, it is crucial to seek legal advice to protect your rights and reputation.

If you find yourself in a situation where you feel you have been defamed, do not hesitate to contact us for legal support.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.