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

Zululand Observer - Weekender - - ZO OPINION -

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.

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