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Legal trouble for social media comments in SA

Legal trouble for social media comments in SA

The South Gauteng High Court has set a new legal precedent after it granted a South African Facebook user an interdict preventing a friend from posting about his personal life on the social network after she defamed him on the site.

In a first for South Africa, you may now have to be a little bit more conservative when posting about the intricacies of your friends’ personal lives on Facebook or other social media – or face a case of defamation.

The case was brought before the court after a Facebook user posted a status update about a party he attended, and was met with the following comment from a friend:

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?

In response to the comment, the user took the matter to court, claiming that the comment defamed him on a number of grounds.

In his application, the Facebook user sought to block the friend from making any more posts about him on social media – as well as an order that she be arrested for 30 days should she fail to comply.

In the subsequent ruling, Judge Nigel Willis tackled the defamation case mindful of social media and its current role in society.

Judge Willis ruled that he could not find any evidence that Facebook would comply with a request to take the offending comment down – and said that it’s better to tackle users, rather than Facebook itself, in matters of privacy.

“If one wants to stop wrongdoing, it is best to act against the wrongdoers themselves,” he said.

Judge Nigel Willis

Judge Nigel Willis (Image: mg.co.za)

Unlawful posting

“In our law, it is not good enough, as a defence to or a ground of justification for a defamation, that the published words may be true: it must also be to the public benefit or in the public interest that they be published.”

“A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The courts do not pander to prurience.”

“I am satisfied that it is neither to the public benefit or in the public interest that the words in respect of which the applicant complains be published, even if it is accepted that they are true.”

Judge Willis went on to say that in the defence of “fair comment” – the onus fell on the friend to present the evidence that her views were justified.

“She has been unable to justify her posting…The background to the posting, together with the words themselves, indicates that the respondent acted out of malice when she posted the offending comments.”

Watch what you say

In the final ruling, the court did not grant the Facebook user’s request to indefinitely block all comment made by his friend about him – and there was no precedent set for arrests to be made.

In the ruling, the court granted an interdict, ordering the friend to remove her comments about the user from social media, and to pay the application costs.

“Those who make postings about others on the social media would be well advised to remove such postings immediately upon the request of an offended party. It will seldom be worth contesting one’s obligation to do so,” Judge Willis said.

“After all, the social media is about building friendships around the world, rather than offending fellow human beings. Affirming bonds of affinity is what being ‘social’ is all about,” he said.

The full social media judgement can be found in PDF format from SAflii.org.

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Quinton is a business and technology journalist who dabbles in media and graphic design. He holds a degree in Journalism from the University of Johannesburg....
Join the Conversation
  • This is absolutely absurd!!! If this user didn’t like the comments he could have either just deleted the offending post and person, or acknowledge that the truth hurts. Is society becoming so petty that when something is said against you, you run off to court! Grow up and choose your friends more wisely, or clean yourself up and don’t give them ammo to use against you!

    • YaseenT

      Defamation of character is against the law – your opinion of it however is simply just that, your opinion.

    • It can aslo be postulated that the damage is done by the time one tries to remove it. So in essence the learned judge has a point. People need to be accountable for their words, that is what defamation laws are about. Bravo to a brave and thoughtful Judge Willis

    • Karl

      Just to be clear: the post was on her own page, not on his page. You can only delete posts on your own page. And she refused to delete the comment after he requested her to do so.

    • It is only defamation if it is not true. How can asking a question be considered defamation?

  • felixratcatcher

    Even the law is getting sick of people vomiting on their Facebook pages. Finally some reprieve – just sad it took a lawyer :).

    • Yes, or those who can’t post under their own names.

      • Wonder how the judge will defamation by “Felixratcatcher”.

        • The more I think of it the more bull shit this decision becomes by the moment. Challenge it in the Supreme Court.

  • We have a situation where the controlling body for Motor Sport in South Africa Is allowing the use of an environmental pollutant and Hazardous Chemical Substance in a totally reckless and negligent matter – this has been brought to their attention and they even lied to SASCOC in a formal report on the matter. I have been commenting on this for a number of months – what are my chances of having the whole thing turned against me .
    Charles Hellyar

    • CarterD

      The judge was pretty clear in his ruling (in the full report) that there will always be at least 2 things to overcome – public interest, and fair comment. In any case where you bring someone or a company into disrepute, you need to be sure it’s of interest to a lot of people in the general public, and that there is evidence to back up your claims. The only way a company could turn your case against you is if you’re commenting and making claims without evidence.

  • In April of 2012 I did a job for a former client and he did not pay me for the job. I have the invoice and his “brief” to prove that I did the work as well as emails sent with the invoice to claim payment. The emails were all ignored. Then I saw his business’ new location on Foursquare and I posted a comment that people should be careful about doing business there and should ask for deposits. 3 months later I got sued for defamation and reputational damage to the tune of 750K. I filed a notice to defend at the Durban High Court and I’m awaiting this to play out in court. I am especially interested in how the plaintiff arrived at the figure of R750 000. In addition the “client” he claims brought the Foursquare post to his attention is actually his brother-in-law, also a former client of mine with whom I had a fall-out when I was just a freelance website designer.

    What would you say my chances are in court? (no I am not worried at all)

    • Your posting was 100% in the public interest, so I think you’re safe.

    • Relacs At JosMacs

      I think you will lose, based on another case I have read about. (But I agree with what you did, because you were probably just trying to protect the innocent). Nevertheless, I believe the court will rule against you on the grounds that you are defaming someone publicly, without them having been convicted.

      • Perhaps my definition of defamation is unclear. Is defamation not hurtful comments made with the express purpose of hurting someone? As opposed to making factual statements about a person’s behaviour and conduct?

  • moduledev

    I am convinced some of these judges ragard themselves as gods of some kind what a stupid judgement

  • What jurisdiction does a South African court exercise over a posting in cyber-space?

  • Reading the report and the comments about this only two comments occur to me. The first is that had she possibly prefaced her remarks with “I believe that” or words to that effect or been able to provide tangible proof of what she claimed then she might have escaped. The second would be that while you may choose to put accusations against a third party in a public domain such as facebook, it is not Facebook who is responsible should that comment be deemed defamatory by the person whom it affects. You are directly responsible for what is said unless you provide evidence and that is extremely difficult when it comes to another person’s lifestyle. Evidence would have to be led by you in the form of witnesses and other persons affected by your comment such as minors and already defeated ex-wives/acquaintances whose characters will then be ripped to shreds in court by his lawyers. Words = sword – beware that you don’t end up falling on your own. Think before you speak or write: what might be true but would be difficult to prove could land you in huge trouble.

    As an afterthought I must add that I would not have known anything about this person or the post quoted had they not taken it to court. In effect they may have won their case but it is something of a Pyrrhic victory.

  • Jacques du Toit

    More grounds for criminal rights. If you want rights you have to be a nasty person / criminal / any of those kinds of people. You have no rights as a victim or innocent

  • Greg

    Arthur I had a high court interdict against me for broadcasting the dealings of a dodgy company who I had a run in with , I however got my money through social media pressure , as long as you don’t say they are thieves if not convicted yet. If you can prove your statements were warented I would not worry , it is just scare tactics.

    • Funny thing happened. The accuser approached my church pastor and via my pastor brokered a deal that if I would apologise he would drop the charges. After I initially declined to apologise (because I regretted nothing), he was scheduled to go on a missionary trip with my pastor and claimed he cannot “minister” with this thing hanging over him. I apologised under duress. Case closed.

  • HELP!!!!!

    hi

    i need help on a pretty serious spectacle on a certain group of forums

    all information is cooked up and it negatively affects not just my personal life but my family friends and other relations.

    i have numerous times asked for removal of information, even had
    other people request, but due to the lack of control on this area i have
    been made a further mock on these forums, even leading to death threats
    and repeated harassment by private phone calls etc

    i have spoken to the police as recently as today and cant get
    anything accomplished, if the information about me was true i would have
    showed the other cheek, i am not criminal, yet made out as that and
    much more and much worse

    i operate a motorsports based company, and to date this has cost me
    millions and at a minimum 3 million,,and to such extent my company
    faces financial shutdown, the fact that personal information from my
    Facebook page was edited and re-posted on other sites etc with sole
    intent of financially ruining me, must be criminally prosecutable?

    if anybody can assist me pro-Bono or sponsor this case, it will be
    financially worth following up and stating publicly that this form of
    slandering is a bad idea

    feel free to contact me on [email protected]

    i have over 300 pages of information as evidence on different forums and platforms known and publically visable.

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