Louis Nel

ADV. LOUIS NEL

By now we know that the main culprit (usually!) is the party how pronounces the dreaded words verbally, in writing or by gesture, etc. We also know that the party using social media who ‘repeats’/shares it may also be in the hot seat. Finally another party may be forced to join the fray namely the inter service provider (‘ISP’) but only if its service was used for these purposes without its knowledge and if it use due care & diligence to prevent it.

Some of the reasons why defamation is of such a serious nature is the impact on the individual’s (or legal entity e.g. a company) reputation. As you are no doubt aware, you take years to build your reputation and all that heard work can be destroyed (Sometimes forever) in a split second. Individuals may also suffer substantial emotional stress and fall out.

All the above aggrieved parties are entitled to sue for damages.. The amount of the damages award (Known as the ‘quantum’) varies from case to case based on the facts, but essentially the adjudicator will consider the following factors (Not in order of importance):

  • How ‘bad’ was the utterance?
  • How many people got to hear it e.g. it may have been published to a few people at a party as opposed to a newspaper or e.g. Facebook
  • How reckless was the utterance?
  • Was it is such a nature that the recipient(s) took it seriously? 
  • The extent to which the plaintiff (aggrieved party) is know e.g. a movie start as opposed to ‘Joe Public’
  • The conduct of the guilty party after to publication e.g. did he/she apologize?

Let’s look at a couple of cases:

(Courtesy of & acknowledging copy right of www.findanattorney.co.za & www.golegal.co.za)

#1        NEIGHBOURLY LOVE

Two neighbours H and B, living in a gated estate were involved in a spat where H complained about the fact that B kept noisy chickens on the property. These chickens were then substituted with about 60 rabbits, and the smell of these rabbits was also a source of complaint to H who took photographs of the rabbits to highlight the conditions that he was being subjected to. In retaliation, B started a smear campaign against H on Facebook accusing H of being “a peeping tom” calling him “a perverse neighbour”, “an idiot” and “an ugly piece of shit.”  Many others saw the Facebook message where H’s name and address were also mentioned. H complained that the Facebook message was defamatory of him, that it injured his reputation and his dignity and claimed Rl.3 million rand as compensation.  

H said that residents on the estate were also warned to be careful when they send their children to the community pool as H will be watching them, implying that he was a paedophile. Many other Facebook users commented on the post saying things like “shoot the bastard in the face with a pelletgun, the ugly two faced jurk (sic)”. He was called a “flippen gemors” (scum), “a sick bleksem”, “a monster”, “a disgusting piece of shit”. H complained that these Facebook posts affected his business and his reputation as a businessman and as a well-known resident of the estate. The court found that the Facebook posts did indeed injure H’s dignity and his reputation and ordered B to pay the sum of R350 000,00 as damages to H as compensation.

#2        BAD DEBTS

A businesswoman “the applicant” an events organizer, brought an interdict application in the Durban High Court in which she asked to court to prevent  a woman “the respondent” from making defamatory statements about her. This was after the respondent posted a warning on Facebook that business owners and job seekers not do business with the applicant and saying that the applicant “has screwed hundred of people out of thousands of rand” and that she (the respondent) has still not been paid for the services rendered.

The applicant also claimed in her papers that the respondent was responsible for circulating an anonymous defamatory ‘warning email’, which circulated amongst traders, sponsors and the community at large, including that she is an expert in fraud. The respondent admitted that she posted the statements on Facebook, but denied that she was the author of the anonymous email. A letter from the applicant’s attorneys requesting the respondent not post such statements was ignored leading to the matter going to court. The High Court found the words used on Facebook were defamatory of the applicant. The court found no proof that the respondent was the author of the anonymous warning email and dismissed that part of the interdict. However with regard to the Facebook posting, the judge said, “people need to be aware that the publication of a defamatory statement concerning another person on social media is not excused by the fact that the statement is true.

The court also said that even if something is true, it must also be in the public interest. The court cautioned that this is not the same as being interesting to the public. The court held that “It’s one thing to say that someone has not paid her creditors – it is an entirely different thing to say that someone has cheated or swindled ‘hundred’ of people out of thousands of Rands and cannot be trusted to do business with. The court found there to be “no justification for publishing these statements and ordered the respondent to be interdicted and restrained from unlawfully interfering with the applicant’s business and unlawfully casting aspersions on the applicant’s character, personality and business reputation.

#3        THE WRONG JUDAS

Closer to home, there have been various lawsuits in South Africa over defamatory statements made on social media. The first case of this nature involved the sale of church premises which sparked, among others, a Facebook campaign in which the Dutch Reform Church was likened to Judas Iscariot selling out for 30 pieces of silver. The court had no difficulty in finding that statements of this nature were harmful and injurious and should be interdicted  (Dutch Reformed Church Vergesig Johannesburg Congregation and another v Sooknunan t/a Glory Divine World Ministries [2012]).

 

#4        TRUTH AND PUBLIC BENEFIT 

In Herholdt v Wills, in which the offending post stated: “‘Letter to WH – for public consumption –  I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified. Remember I see the broken hearted faces of your girls every day.  Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to take responsibility for the consequences of your own behaviour? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, you still see a man?”

In this matter, the South Gauteng High Court was called upon to determine a claim of defamation arising out of this comment.

In considering the remarks, Justice Willis had regard to the common law rights to privacy and to freedom of expression which are enshrined in our Constitution but stated that the founders of our Constitution could not have foreseen the tensions that social media have created for these rights. In this instance, these rights were in conflict and the Court was called upon to weigh up the right to privacy against the right to freedom of expression.

The Court reiterated that in our law, the fact that the published statement may be true is not, of itself, a defence. The publication must also be for the public benefit. Our law does not protect salacious gossip.

The Court reaffirmed its obligation to develop the common law in accordance with Constitutional principles and reiterated the need for the courts and lawyers to keep abreast with the pace of technological progress. The Learned Judge pointed out that the“’social’ quality of the social media has legal implications for publication therein (or should one, more correctly, say ‘thereon’).

The Respondent in this case, claimed that the offending post was not aimed at defaming the Applicant. Her purpose in posting such comment, she claimed, was so that the Applicant would “reflect on his life and on the road he had chosen.”  Justice Willis was not convinced. On the evidence before him, he was satisfied that she was unable to justify her post and that she was motivated by malice. In this instance, the Court was satisfied that the remarks were defamatory and that the Applicant’s right to privacy and to good name and reputation had been unlawfully infringed by the Respondent.

“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.”

The Court granted a mandatory interdict instructing the Respondent to take down any posts regarding the Applicant on Facebook and any other social media site.

Isparta v Richter was an action for damages. In this case, the offending post “Aan alle mammas en pappas … wat dink julle van mense wat stief tiener boetjies toelaat ome klein sus-sies to bad elke aand . net omdat did die ma se lewe vergerieflik??? This post was followed by the comments “Not a chance”and Oh hell nee sal dit nooit toelaat nie”. The court found that this post was scandalous and suggested that the Plaintiff encouraged and tolerated sexual deviation and paedophilia. Interestingly, the court not only ordered damages in the sum of ZAR 40 000 against the author of the posts, but held her husband equally liable because he was tagged in the posts and failed to take steps to distance himself from the posts.

#5        BATH TIME              

The most recent case relating to defamatory content published on Facebook is McKenzie v Braithwaite. The offending post Debate: Your ex has your daughter (5) for the weekend and is sleeping at a mates house. They all (about 6 adults) go jolling and your ex’s drunk, 50 yr old girlfriend ends up sleeping with your daughter cause he doesn’t want his girlfriend sleeping in a single bed she can share the double bed with his/your daughter! How would you feel?”

This post led to an urgent application in which the interim relief granted was that the author of the offensive posts was (1) ordered to remove all messages of a defamatory nature, (2) instructed to refrain from posting any defamatory statements about the complainant in the future and (3) instructed to refrain from publishing, making or distributing defamatory statements about the complainant. On the return day, the court confirmed only the first order on the basis that the second two orders went too far. In this regard, the court noted that it should not speculate on what could constitute defamatory statements in the future as not every defamatory statement is actionable as there may be a good defense.

#6        IT’S NOT CRICKET/STICKY WICKET

In the UK, Chris Cairns, a New Zealand cricketer, won a law suit against Lalit Modi, the former chairman of the Indian Premier League, after Modi accused him, on Twitter, of match fixing. Modi was ordered to pay Cairns in the region GBP 90 000 in damages and GBP 400 000 pounds in legal fees – a rather costly lesson for Modi on the appropriate use of twitter.

 

DISCLAIMER 

 This newsletter/article is intended to provide a brief overview of legal matters pertaining to captioned matter and is not intended as legal advice. As every situation depends on its own facts and circumstances, only professional advice should be relied on. Please contact Adv. Louis Nel at [email protected] or on +27 83 679 4556’