Article by listed attorney: Fawzia Khan
In keeping with our focus on the law pertaining to online defamation (see previous article on social media defamation), we examine the case of H v W, which was a Gauteng judgment, handed down earlier this year. In his judgment which by the way ran into 30 pages, Judge Willis detailed what criteria the courts will consider in a claim for damages when a person’s reputation has been tarnished because of defamatory postings on Facebook. The judge took ‘judicial notice’ of the “new” language, which now forms an integral part of the lives of millions across the globe. Words such as “Facebook”, “Post”, “Like”, “Wall”, “Friend”, “Tag”, “Contact” and others were defined within the context of modern day technology. The judge was mindful of the speed with which technology evolves and said “The pace of the march of technological progress has quickened to the extent that the social changes that result therefrom require high levels of skill not only from the courts, which must respond appropriately, but also from the lawyers who prepare cases such as this for adjudication”.
In that case a woman (“W”) published a letter on Facebook which included the words: “ I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified. Remember I see the broken hearted faces of your girls every day. Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to take responsibility for the consequences of your own behaviour? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, do you still see a man?” The man (“H”) was a family friend and now involved in a bitter divorce with his wife. “H’s” wife left the matrimonial home and together with her children, went to stay at the home of “W”, whilst the divorce proceedings were underway. The court heard that H was a man who enjoyed “a good party” and “liked his social intercourse to be lubricated with alcoholic beverages” and that he was also an active social networker with both a Facebook and Twitter account. “W” used these very reasons as justification for publishing the posting the letter on Facebook and refused to remove the posting. The court found that W’s Facebook post was defamatory and unlawful and ordered “W” to pay damages to “H”.
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