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To Post Or Not To Post

01 April 2013

Without Prejudice

In a recent decision by the South Gauteng High Court, the respondent was ordered to remove all postings on Facebook or any other social media sites which referred to the applicant. In granting this order, the court stated that the applicant has a clear right to his privacy and the protection of his reputation and that no valid justification for the defamatory comments had been raised.

This application came as a result of the respondent posting comments about the applicant's partying and "social intercourse... lubricated with alcoholic beverages." (the Judges' words)

The judge notes the courts' duty to develop the common law and reiterates that the fast pace of technological progress requires high levels of skill from the court, as well the lawyers preparing such cases for adjudication.

This judgement is seminal. Socialising mid communicating have taken on a new form due to the frenzy of social media that engulfs our society. With the youth not knowing a world where Facebook and Twitter did not exist, it seems apt that the law intervenes where these new forms of media are abused.

In the case of Mthembi-Mahanyele v Mail and Guardian the Supreme Court of Appeal held that, in determining whether words have a defamatory meaning, the test is whether a "reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned". This test was relied on in the Facebook case to hold that the posting was, in fact, defamatory.

The law relating to defamation provides that defamatory comments are only justified if they are not only true but also to the public benefit or in the public interest. The judgement in National Media Limited and Others v Bogoshi* held that a distinction must be drawn between what is "in the public's interest" as opposed to "what is interesting."

The respondent in H i' W raised no justification for his defamatory comments. If he did, however, the same common law would be applied as in any defamation case. Members of the public ought to be aware that the laws of defamation apply to social media in precisely the same way as they do to conventional forms of media.

A recent Carte Blanche episode aired on M-Net showed attorney Emma Sadleir, a specialist in Media Law, stating that the public is under the impression that, when stepping into the "cyber world" they are instantly immune from the rule of law and are free to say whatever they want. This is not the case. On 26 February Ms Sadleir tweeted "You can go to jail, be sued or be fired for what you say on twitter."

Recently, a Northern Ireland Judge awarded €35 000 in damages for an anonymous Facebook defamation, which would be enforced if the person was ever identified.

In the South Gauteng High Court case, the judge noted that Facebook is distinguished from other sites such as Twitter or Google in that a member must accede and agree to Facebook's Data Privacy Policies and Terms. Privacy settings on Facebook are by no means foolproof and this is clearly spelt out on the website. Thus, users should be cautious in assuming that strangers are unable to access their profile and information due to their "privacy settings". Facebook receives personal information from the user and stores this information until the account is deleted. Users are, therefore, trusting that the Facebook database is secure in its control of the information, having no proof on which to base this belief. Further, "friend requests" are sent and accepted for members to be in contact. This raises the question, whether, by accepting these terms and policies, a member is ceding their rights and protection against defamation from their "friends".

Professor Anneliese Roos in "Privacy in the Facebook Era: A South African Legal Perspective" discusses the dichotomy when establishing whether information on Facebook would be considered "public" or "private". She states that the internet is a very public place and that subscribers cannot expect guaranteed privacy. However, when applying specific privacy settings to your profile, you are placed under the impression that certain information should remain private.

The recent tabling of the Protection From Harassment Act, which President Jacob Zuma noted in his State of the Nation address as being a "mechanism to protect women" is an indication of the appetite the legislature has for the protection of the rights of privacy and dignity. The Bill also deals with harassment by persons who stalk their victims by means of electronic communications. Its implementation would erase the already blurred line between reality and the "cyber world" and provide a legal guard against the abuse of social networking.

It needs to be reiterated that what is "posted" across cyber universe in the click of a button is also subject to the rule of law. In para 31 of the judgement, the judge aptly states, "Without credibility, law loses legitimacy, if law loses legitimacy, it loses acceptance. If it loses acceptance it loses obedience. It is, imperative that the courts res/> on youth. Posting witty comments (that are given the "thumbs-up") is often done carelessly and without consideration to their implications. Rather, such posts are aimed at attaining social recognition and some talk-time among "friends."

Those who post ill-considered comments about others on social media sites and are requested to remove them are well-advised to heed that  request. Or better yet, avoid making such comments at all. The old adage, "if you have nothing good to say then don't say anything at all," should serve as inspiration before updating your Facebook status or tweeting!

The team

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