Consider the risk of being sued for defamation before you ‘share’ or ‘like’

Funny quotations, embarrassing videos and stinging remarks about people can travel through social media with incredible speed, and social media users often share or “like” this kind of material without considering the consequences.

Johannes du Plessis, a legal adviser at Risk Benefit Solutions, argues that even seemingly innocent reposts and comments on social media sites can increase the risk of you being held liable for defamation.

“In law, every person has the right to a good name and reputation, which is the respect and status he or she enjoys in society. Any action that has the effect of harming a person’s status in the community is defamatory, and the doer may therefore be held liable,” Du Plessis says.

Du Plessis says this includes defamation committed by way of sharing videos, pictures, jokes, remarks or general information about a person via social media.

“According to case law, it is irrelevant whether the defamatory allegation is true or false. It also does not matter whether the defamatory material originated from you, or whether you simply repeat, confirm, share, or even draw attention to it. You are still at risk,” he says.

Also according to case law, whether the good name of the person involved has, in fact, been harmed is irrelevant when determining wrongfulness. The question, Du Plessis says, is whether, in the opinion of a reasonable person, the reputation of the person concerned has been harmed. “In a civil case, you may be liable for intentionally or negligently harming the defamed person’s good name, reputation and dignity. In a criminal case, you may be criminally liable for intentionally doing so.”

Du Plessis says that this wide application of defamation makes it very easy for social media users to be held liable for defamation by means of social media.

Du Plessis points out that there are many examples in South African case law that demonstrate the risks of careless social media behaviour. “All people who share a defamatory item may be jointly and severally liable for the same damage, according to the Apportionment of Damages Act. Also, an employer may be held liable for the defamatory actions of an employee.”

South African courts have already seen cases where people’s social media activity has cost them, Du Plessis says. Courts have ordered individuals held to have defamed someone on social media to pay tens of thousands of rands in compensation.

The courts have also held people who were tagged in the defamatory content to be jointly and severally liable, because they failed to take steps to actively distance themselves from the content, Du Plessis says.

“Do not put yourself at risk by posting, sharing or even calling attention to defamatory material on social media.

“Finally, to guard against the risk of liability for defamation, social media users can take out liability insurance that covers defamation,” he says.