Ponder that post - Defamation in the time of social media

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BUSINESS NEWS - The public at large have been turning their attention away from the traditional sources of news, information, and social interaction because of the advent of social media, and particularly the uber commercialization thereof in the past decade.

Invariably the result is that most individuals are active on platforms such as Facebook, Instagram, Twitter or a myriad of other social media outlets offering similar services.

If not, consider for instance that friendly local neighbourhood WhatsApp group established for the benefit and security of all local residence.

The availability and use of these alternate media sources should of course be applauded. What does however potentially present a problem is the ease with which original content can be further disseminated and / or agreed with either via comment, tagging or onward posting, such potentially casting the net for a defamation claim wider than was traditionally the case.

Defamation in South African law is aimed at protecting a person’s dignity and/or reputation.

When assessing a claim for defamation, our Courts will enquire as to the presence or not of the following requirements:

Did the publisher have the intention to defame?
Were the statements wrongful?
Was there a published defamatory statement made about the complainant?
Did the complainant suffer harm(damages) because of the defamatory statement?

For purposes of the current article, these requirements, and the defences available thereto will not be fully canvassed, suffice it to say that our Courts base their decision as to whether defamation has occurred, on the facts of each particular case.

In the past, before social media became mainstream, claims for defamation were in the vast majority of instance limited to the source of the publicised statements given that they would invariably appear in printed media.

Social media has considerably changed this landscape given that potential defamatory statements made by an originator can now be disseminated and / or agreed upon by several secondary consumers exposing themselves to potential action in their personal capacity or as part of a specified group.

This is clear based on the following principles which have been exposed upon by our Courts in the recent past:

You don’t have to be an originator of potential defamatory statements to be held liable for defamation.
Simply sharing or liking a third-party post can be seen as defamation.
Where you are tagged in a defamatory post and fail to remove yourself or disassociate yourself from the post, it can be seen as defamatory.
Even if a specific individual’s post in isolation may not be seen as defamatory, several different individual’s posts can be seen as defamatory when viewed as a whole.

Given the widening net for defamation claims, specifically in relation to individuals whom or not originators of potentially defamatory statements, it is worth noting that any Constitutionally guaranteed right is subject to limitations, including the right to Freedom of Speech. It is thus well advised to carefully consider not only your own individual social media posts, but also the entire thread of posts relating to any matter under discussion.

The additional care that needs to be shown before engaging actively in group discussion and / or comment online is all the more apparent since the active and well publicised pursuit by the Human Rights Commission of various individuals making racial comments online.

Of course, in your eagerness to avoid being associated with defamatory comment on social media originating from a third party, do not neglect to carefully consider any content originating from yourself.