Local court reins in Facebook over slander

AMiddelburg high court ruling has set a vital precedent, drawing a line in the sand for social media on the issue of slander and defamation and holding Facebook responsible for upholding the law when it comes to defamatory remarks and hate speech.

It remains unclear what clout local law holds for other jurisdictions, and Facebook might still appeal against the ruling, but it remains an important case to note.

My problem with Facebook, and many other social media platforms, is that they benefit from being publishers, including posting and making money from advertisements.

Yet despite benefiting grandly from other news organisations’ republished stories and/ or other user-generated content, they generally refuse to take any responsibility for what that content includes or implies.

All other publishers abide by a journalistic code of ethics set by their countries’ media watchdogs and observe the laws of defamation and libel applicable to their jurisdiction.

My editor-in-chief at Daily Maverick, Branko Brkic, has previously argued that “social networks may claim they are ‘only’ platforms for others to publish, but the moment they apply algorithms to bring specific content to the users, they are in the business of curation, which is also the business of publishing”.

“We go to extreme lengths to ensure what we publish is accurate and fair, and we are responsible for every word we publish,” he says.

“[Social networks] serve as an amplifying station for the most dangerous groups and ideologies on Earth. Facebook, Twitter and many others may feel they can have the best of both worlds, and they will continue to do so until humanity puts the stop to it. It is up to all of us to break the cycle of abuse.”

The recent finding by the Middelburg high court might be an indication that the tide is turning. A media release about it, issued by Cawood Attorneys, has been run extensively on various platforms. The case pertains to social media slander against the Pretoria law firm and one of its directors, and on the face of it the judgment has set a precedent for other courts to follow.

The first respondent, a business woman who provides a service to Eskom Rotek Industries, posted unfortunate comments arising from her company’s business rescue process.

The business rescue practitioner — who the business owner wrongly believed to be Cawood Attorneys — decided to wind up the woman’s business for liquidation, stating that it was “beyond saving”.

In subsequent posts on Facebook, the business owner called the law firm’s honesty and integrity into question and falsely accused it of stealing Covid-19 funds.

The firm responded to the comments online, asking the woman to delete them. She responded by identifying the business rescue director by name and claiming, among other things, that Cawood Attorneys was racist and sexist and had taken advantage of a black woman in distress.

Facebook, asked by the law firm to remove the offending comments, responded: “We reviewed the comment that you reported and found that it doesn’t go against any of our community standards. For this reason, we didn’t take the comment down.”

The firm then took the social media giant to court as second respondent in the action. Facebook removed the offending remarks before the case was heard, but the court issued a formal ruling ordering the woman to take down the posts. Cawood Attorneys was awarded costs, but did not seek damages.

When Business Maverick asked Facebook South Africa about the case, it said simply that the matter had been settled.

But the Middelburg court’s finding has set an important precedent, at least in South Africa and possibly further afield, according to media expert Reg Rumney.

In the US, social media giants such as Facebook, Twitter, YouTube and others have until now been protected by Section 230 of the Communications Decency Act. However President Donald Trump signed an executive order in June, calling on federal regulators to review whether Section 230 should be revised or completely abolished.

Bloomberg reports that the law allows social media companies to provide a forum for users without being held liable for what they post. Experts and businesses often credit the protection, passed in 1996, as one of the major reasons behind the rise of the internet economy.

If social media companies were made liable for what their users posted, they might not allow discussion of controversial topics or provide any opportunity for users to comment.

“It will restrict more speech online, not less,” a Facebook spokesperson said of the proposed scrapping of Section 230. “By exposing companies to potential liability for everything that billions of people around the world say, this would penalise companies that choose to allow controversial speech and encourage platforms to censor anything that might offend anyone.”

Social media had enabled activists to create movements like #FeesMustFall and #BlackLivesMatter and were significant in the Arab Spring. “If these platforms were not there to provide that reach, who knows if [the movements] ever would’ve had the same magnitude as they do, or enabled people to bring down intolerent or corrupt regimes,” the Facebook spokesperson said.

There is some truth in that, but Facebook cannot evade accountability that easily. It’s time to man up.