Article by listed attorney: Fawzia Khan
The number of instructions our firm receives for online defamation matters continues to grow at an astonishing rate. Many of my colleagues who deal in civil litigation matters have also reported a similar trend in defamation litigation. One of the reasons for the increase in such matters is no doubt due to the speed of electronic communications. That coupled with the fact that many people seem to believe that posting a comment on the internet, whether it’s on Facebook, Twitter, a blog or on any social media platform entitles us to have carte blanche and say whatever is on our mind. This, regardless of who may be hurt or offended by those comments. An unfavourable comment or status update of someone on your Facebook wall or Twitter account is so easy. If the person concerned has upset you and you are highly emotional, posting such a comment could give you the temporary vindication with many other people sympathizing with you but beware, it could just as easily land you in hot water. In fact Professor Pierre De Vos, a constitutional law expert, in Cape Town, has this to say about online defamation, “There is something about Internet websites and social media platforms like Facebook and Twitter that seem to bring out the worst in people. Otherwise reasonably decent people who might well carefully weigh their words (and may be polite and generous to friends and acquaintances in private) can become raving hatemongers and irresponsible tattletales on these platforms. In theory, they expose themselves to defamation claims or even – in extreme cases – contempt of court proceedings.”
Online defamation is the publication of any statements on the Internet, which is considered to harm a person’s name and reputation. Making defamatory comments via the Internet does not give a person a shield against be sued for defamation. Priscilla Blackadder, a barrister in Australia who is widely regarded as a social media law specialist, offers the following advice on the issue of online defamation. “The best thing to do is if you have been accused of defaming someone on social media is to take down the offending material and offer an apology to the person. If they accept the apology, that will be the end of it. If they do not, you should speak to a lawyer about the next steps. The Golden Rule for avoiding potential defamation claims on social media is to keep in mind that anything you post could potentially be used as evidence in a defamation proceeding. Even if you delete posts, technology has advanced to the point where deleted data is recoverable. Therefore the golden rule for posting materials online is, don’t post anything that you would not want a judge to judge on. If you honestly feel that a judge would look at the materials and vindicate you then it is probably fine. But if you honestly don’t think you would get that vindication and support – THEN DON’T SAY IT!”
As far as the South African law is concerned if you say anything on a social media platform which would potentially be considered as harming another person’s reputation or undermines his/her dignity, that’s likely to be a defamation action. So think twice before you re-tweet any such posting as you could arguably be seen to be reproducing the defamatory material. A defamatory statement must be made known to at least one person other than the defamed individual. In order to have a valid cause of action, an aggrieved person must show that the defaulting person has (a) published, (b) defamatory matter, (c) referring to the aggrieved person. Once those elements have been established, the presumptions, which will follow in such defamation cases would be that the publication was unlawful, the defaulting person intentionally wanted to harm the name and reputation of the aggrieved person and that the aggrieved person has, by reason of such defamation, suffered damage to his or her name and reputation.
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