So­cial Me­dia & Defama­tion - Part 1

Tourism Tattler - - EDITORIAL -

Part 1

TREAD WAR­ILY!

As we are all no doubt quite aware, so­cial me­dia has to a large ex­tent be­come the medium of choice not only to pub­li­cize and dis­sem­i­nate in­for­ma­tion but also to glean in­for­ma­tion. Due to the ubiq­ui­tous na­ture of the so­cial me­dia and the fact that any in­for­ma­tion com­mu­ni­cated via this medium is in­stan­ta­neously shared across the globe, the im­pact of such con­tent is much greater, whether pos­i­tive or neg­a­tive.

The lat­ter is the is­sue I will be ad­dress­ing in this and sub­se­quent parts of this se­ries. Be­fore I con­tinue I need to make sure we are ‘on the same page' so let's look at what we un­der­stand the def­i­ni­tion of defama­tion and so­cial me­dia re­spec­tively to ac­tu­ally mean:

DEF­I­NI­TIONS

Defama­tion:

Wikipedia: Defama­tion is the in­fringe­ment of one's fama (Rep­u­ta­tion or good name) i.e. the un­law­ful and in­ten­tional pub­li­ca­tion of defam­a­tory mat­ter (by words or by con­duct or even a sketch/car­i­ca­ture/de­pic­tion) re­fer­ring to the plain­tiff, which causes his rep­u­ta­tion to be im­paired. The Law of Delict, McKer­ron: The pub­li­ca­tion of defam­a­tory mat­ter con­cern­ing an­other with­out law­ful jus­ti­fi­ca­tion or ex­cuse.

It can even in­clude ‘body lan­guage / hand ges­tures' (Abra­hams & Gross). The English dif­fer­en­ti­a­tion be­tween ‘li­bel' (writ­ten) and ‘slan­der' (spo­ken) forms of defama­tion is not part of our law – in South African law defama­tion refers to state­ments in any for­mat that dam­age a per­sons rep­u­ta­tion.

So­cial Me­dia:

Whatis.com: So­cial me­dia is the col­lec­tive of on­line com­mu­ni­ca­tions chan­nels ded­i­cated to com­mu­nity-based in­put, in­ter­ac­tion, con­tent-shar­ing and col­lab­o­ra­tion. Web­sites and ap­pli­ca­tions ded­i­cated to fo­rums, mi­croblog­ging, so­cial networking, so­cial book­mark­ing, so­cial cu­ra­tion, and wikis are among the dif­fer­ent types of so­cial me­dia. Me­riam Webster: forms of elec­tronic com­mu­ni­ca­tion (as web­sites for so­cial networking and mi­croblog­ging) through which users cre­ate on­line com­mu­ni­ties to share in­for­ma­tion, ideas, per­sonal mes­sages, and other con­tent (as videos). Some of the bet­ter known and more reg­u­larly used so­cial me­dia plat­forms are Google, Face­book, Twit­ter and In­sta­gram.

WHAT GOVERNS THE BE­HAV­IOUR OF PAR­TIES PAR­TIC­I­PAT­ING IN SO­CIAL ME­DIA?

There are the rules/terms and con­di­tions per­tain­ing to each form of so­cial me­dia that users un­der­take to com­ply with once they en­gage that medium and then there are the laws of the coun­try and the com­mon law. How­ever, be­fore we even con­sider any of the afore­men­tioned guide­lines there is the code of con­duct (‘COC') gov­ern­ing the mem­ber­ship of the as­so­ci­a­tion you are a mem­ber of. FGASA has a com­pre­hen­sive COC and the fol­low­ing as­pects im­pact on the use of so­cial me­dia – mem­bers un­der­take the fol­low­ing and the trans­gres­sion thereof has dire con­se­quences:

• Com­pli­ance with the con­sti­tu­tion and laws

• Treat peo­ple with re­spect

• Avoid in­sen­si­tive and ir­re­spon­si­ble be­hav­iour

• Be tact­ful.

The South African Con­sti­tu­tion en­shrines free­dom of ex­pres­sion (sec­tion 16) but this must be bal­anced (by the courts) with the right to main­tain one's rep­u­ta­tion and dig­nity un­blem­ished and that of pri­vacy (sec­tion 14) (See the case of Da­wood and An­other v Min­is­ter of Home Af­fairs and Oth­ers 2000 (3) SA 936 (CC) – ‘Dig­ni­tas con­cerns the in­di­vid­ual's own sense of self worth, but in­cluded in the con­cept are a va­ri­ety of per­sonal rights in­clud­ing, for ex­am­ple, pri­vacy' – see also the case of Her­holdt v Wills: “Face­book is fraught with dan­gers es­pe­cially in the field of pri­vacy” and there­fore the Court agreed that by in­ter­ven­ing it may have a pos­i­tive ef­fect on the use of Face­book. The Court stated that “the ten­sions be­tween ev­ery hu­man be­ing's con­sti­tu­tion­ally en­shrined rights to free­dom of ex­pres­sion and dig­ni­tas is all about bal­ance.”

Each form of so­cial me­dia has its own Terms & Con­di­tions (‘T&C') e.g. Face­book has a ‘State­ment of Rights and Re­spon­si­bil­i­ties' in­clud­ing a ‘Data Pol­icy' which in­cludes its ‘Pri­vacy Ba­sics' (‘You have con­trol over who sees what you share on Face­book‘). It should also be noted that in the USA, Congress ( 1995) passed the Com­mu­ni­ca­tions De­cency Act which pro­tects In­ter­net Ser­vice Providers and web­site hosts from defama­tion claims.

More about the T&Cs of other forms of so­cial me­dia in Part 2.

Dis­claimer: This ar­ti­cle is in­tended to pro­vide a brief over­view of le­gal mat­ters per­tain­ing to the tourism in­dus­try and is not in­tended as le­gal ad­vice. © Adv Louis Nel, 'Louis The Lawyer', Septem­ber 2017.

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