Ponder this before you post
Ilove that consumers have social media to turn to when companies behave badly. No more can companies control and contain negative consumer feedback within their call centres and other private customer handling mechanisms; no more can they get away with claiming “no one else has complained; there isn’t a problem”.
But while those of us in the established media are bound by ethical standards and obligations, such as affording someone the right of reply before publishing a story which names them – and subject to sanction by the Press Ombud and Broadcasting Complaints Commission if we don’t – few social media practitioners know or care about such obligations.
As some have discovered, though, there can be consequences if what you post on Facebook, Twitter or Whatsapp is not true and in the public interest.
If it doesn’t tick those two boxes, it’s defamatory.
Most companies take it on the chin and choose not to take the costly, lengthy legal route. But when it’s extreme enough, and damaging enough, they do.
This week a South African company – which does not wish to be named – obtained an interdict in the Western Cape High Court ordering a private individual to remove all his “hateful, derogatory” comments on Facebook and consumer complaints website HelloPeter.
The attorney involved in the matter, Janusz Luterek of Pretoriabased Hahn & Hahn Attorneys, told me the person concerned had created a profile with a false name and not much contact information and then produced posts “based on their perception of a situation”.
“The harm being caused to the brand was irreparable in the shortto medium-term,” Luterek said. “And some of the comments in response to the posts were outrageously vulgar, inciting violence against the business and specific employees, and also extremely racist; more racist than anything I have seen in recent years.”
Luterek said the company maintained the allegations were devoid of truth. “Several attempts were made to show the person the facility and all information available, but they refused, saying it was a conspiracy.”
And so, on a Friday afternoon in April, the court granted a temporary interdict ordering the removal of the posts and comments within two hours. The order was served by WhatsApp – yes, it’s a thing now when the physical address is unknown – and the recipient read it, and then removed the posts.
The order gave the parties 30 days to return to court for a final order, during which time the individual could have argued why the posts were justified, fair, true and in the public interest.
But that didn’t happen, so the court made the order final this week.
“It was clear that this was a private individual who would not be able to satisfy a judgment for damages in the order of millions of rand,” Luterek said. “Our client is not vindictive, so they abandoned their claim for costs and even their demand for an apology.
“All they wanted was an end to the horrendous posts on social media which were harming their brand and posing a threat to the named staff.”
But that person could well have faced a hefty legal bill.
Three years ago Durban auctioneer Ian Wyles obtained an urgent interdict for a former client’s “offensive and defamatory remarks” to be immediately removed from Facebook, and instructed his attorney to sue him for defamation.
The posts were based on a dispute between the man and Wyles over a missing chair bought at an auction Wyles conducted for a bank at the premises of a liquidated company.
In a Facebook post which was shared many times, the man, a business owner himself, went on to accuse the auctioneer of running his business in an unacceptable manner and having staff who steal, and called him a crook and a common thief.
This despite the fact that the chair in question had never been in the auctioneer’s custody.
The man was named in a newspaper’s prominent report on the proceedings, so it was a costly series of social media rants for him, in more ways than one.
The same year a blogger was sentenced to 60 days’ imprisonment for contempt of court, suspended for three years on condition he did not publish any more defamatory statements or photographs of Knysna's deputy mayor, Esmé Edge.
The judge in that matter said the deputy mayor’s conduct could not be wrongful and unlawful simply because the blogger declared it to be so. He was found to have accused Edge of dishonesty and finding her guilty in a court of public opinion without affording her the opportunity to defend his accusations and was ordered to remove certain posts and pay the legal costs.
You get the picture.
Ideally give the company concerned a chance to respond before you vent about them on social media. And whatever you post, make very sure it’s true – facts versus your opinion – and in the public interest. In short, use your power wisely, and fairly.