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Article by listed attorney Fawzia Khan 

On Tuesday morning 18 February 2014 the SABC Radio’s SAfm morning show had an interesting live forum discussion, which asked the question “Have we as a society immortalised prejudice, hate and plain stupidity on social media?” The topic generated much debate about how the internet is used to vent emotions on range of matters. I was asked to participate on the show and present the legal position on online defamation on social media. Many people who called also bemoaned how they were negatively affected when personal and hurtful comments were made about them via Facebook, Twitter and the like.

Read also: latest article on online defamation

South Africa, like many other countries across the globe has taken full recognition of the extensive inroads and impact technology has made in our everyday lives. When one looks at the right of freedom of expression juxtaposed against the right of dignity, which right would be considered more important to uphold? Would a person have the right to speak his or her mind freely and without censure even if it defames someone else. Because of our apartheid history, our Constitution has ensured that we commit to the recognition of human rights and the right to dignity. Whilst our Constitution entrenches both the right to dignity and to freedom of expression, our courts, including the Constitutional Court and the Supreme Court of Appeal, have over the years and in a number defamation related cases, taken the view that the rights to life and dignity takes precedence over one’s right of freedom of expression.

In the United States of America, for example, the right of freedom of expression is entrenched in their constitution. This means the First Amendment of their Constitution guarantees every American citizen the right to voice his or her opinion on any issue regardless of fear or reprisals. Whether or not this is practiced in reality, I’ll let you decide. The SA position on defamation is thus in sharp contrast to that of the USA. If someone makes a hurtful and insulting comment about you on Facebook, Twitter or any other social media platform, it would be considered defamatory, provided certain criteria was met. Defamation is the intentional and wrongful publication of a statement about someone else which also harms that person’s name, reputation and dignity. In other words it’s an infringement of another person’s right to dignity. Defamation in South Africa is based on the Roman law principle known as “Actio Injuriria”. This is a legal remedy allowing a person who has suffered injury to his name, reputation, dignity and reputation to claim damages caused as a result of that injury. Online defamation is the publication of defamatory statements on the Internet and includes all social network environments, websites, blogs, chat rooms or online forum discussions.

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