Steer clear of online defamatory posts
University of Zululand law experts, Prof Desan Iyer and Dr Lizelle Ramaccio Calvino, both attorneys of the High Court of South Africa, discuss the legal implications of defamatory social media postings
IN a world of technology, the ease and speed with which information can be shared is astounding.
Facebook, Twitter, LinkedIn, My Space and many other social networks continue to be popular sites where people use their accounts to share information about themselves and others on a regular basis.
Having such technology available at a click of a button, has seen social media grow at an astonishing rate as people from all walks of life identify with a medium that allows for freedom of expression.
But the opportunity to say whatever is on one’s mind at a click of a button is a privilege that many can rather do without.
In South Africa, the popularity of these online public platforms has seen an increase in the number of online defamation cases that have ended up in court.
The opportunity to post comments about oneself and others comes with a degree of responsibility, but many users fail to exercise restraint when making unfounded comments about others.
Online defamation is the publication of any statement on the internet which is considered to harm another person’s reputation or dignity, and is made public to others.
To pursue an online defamation action, the identity of the wrongdoer must be established.
As the internet is not regulated within the confines of strict internationally recognised parameters, the perpetrator cannot always be easily identified or traced.
Adding to the dilemma is the fact that often the original posting of the message may be from an anonymous sender.
For an online defamation case to succeed in South Africa, the common law elements of defamation need to be established.
The two actions that may be considered in instituting an online defamation case are the Actio Legis
Aquilae (patrimonial damage) and the Actio Iniurarum (injury to personality) which are forms of damage claims.
The onus rests with the victim to prove the wrongful and intentional publication of defamatory material.
The courts will have to balance the right to freedom of expression against the right to privacy and dignity.
However, the court will be mindful of whether the statements qualified as ‘fair comment’, based on facts.
In addition to claiming damages, the victim can apply for an interdict where the court may order the perpetrator to remove the defamatory posts from the internet.
Interestingly, in recent times our courts have indicated that it is not just the initiator of a defamatory post that can be held liable, but anyone who is tagged and does not take steps to dissociate themselves from the defamatory posts.
In addition, anyone who shares a defamatory post may also be liable for defamation.
One also needs to remember that a series of posts may convey a defamatory meaning when read together, yet may appear harmless when read individually.
It is important that one guards against becoming a party to defamatory posts and the first step is to analyse one’s comments before clicking the send button.