In the 2012
case of H v W, heard in The Johannesburg High Court, Judge Willis had to
determine if this post on Facebook was defamatory and, if so, entitled the
applicant to an order interdicting and restraining the respondent from posting
any information pertaining to the applicant on Facebook or any other social
media, or face imprisonment for 30 days or more:
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, do you still see a man?
The applicant complained that the
posting in question published information which portrayed him as: (i) A father
who does not provide financially for his family; (ii) A father who would rather
go out drinking than caring for his family; (iii) A person who has a problem
with drugs and alcohol.
In an exchange of affidavits, the
respondent averred that she “posted the posting not to defame the applicant but
in order for the applicant to reflect on his life and on the road he had chosen”.
The judge had to consider our
ancient Roman and Dutch laws, juxtaposed against our common law and
Constitution, regarding the rights both to privacy and to freedom of
expression. The judge stated that the “social media, of which Facebook is a
component, have created tensions for these rights in ways that could not have
been foreseen…” He added that “it is the duty of the courts harmoniously to
develop the common law in accordance with the principles enshrined in our
Constitution.”
After considering privacy and
freedom of expression issues, the judge affirmed “the principle that the test
for determining whether the words in respect of which there is a complaint have
a defamatory meaning is whether a reasonable person of ordinary intelligence
might reasonably understand the words concerned to convey a meaning defamatory
of the litigant concerned. The words of the posting on Facebook which are in
issue in this case indeed contain the defamatory meaning of which the applicant
complains.”
The respondent raised two defences
to the application, namely that the post was justified as it was true, and fair
comment.
Regarding the defence of truth,
the judge found that not only must the published words be true as a defence to
or a ground of justification for a defamation, they must also be to the public
benefit or in the public interest that they be published. He found that “it is
neither to the public benefit or in the public interest that the words in
respect of which the applicant complains be published, even if it is accepted
that they are true”.
In Crawford v Albu it was held that in order to qualify as ‘fair
comment’, the comment ‘must be based on facts expressly stated or clearly
indicated and admitted or proved to be true’.
Judge Willis found that the respondent
“has been unable to justify her posting. Furthermore, malice or improper motive
by the perpetrator of the comment also acts to defeat the defence of fair
comment. The background to the posting, together with the words themselves,
indicates that the respondent acted out of malice when she posted the offending
comments”.
The judge also found that the
posting was unlawful.
The judge dealt with the ability
to remove a Facebook post (as opposed to a defamatory article in a newspaper or
magazine) and stated that:
It is in respect of the remedy where infringements of privacy take place
in the social media that the common law needs to develop. The social media form
a subset of the electronic media but are not coextensive with it: the social
media are all part of the electronic media but not all the electronic media are
social media. … Not only can items be posted and travel on the electronic media
at a click on a computer in a moment, in an instant, at the twinkling of an
eye, but also they can, with similar facility, be removed therefrom. This can
also be done at minimal cost. The situation is qualitatively different from the
scenario where newspapers have been or are about printed in hardcopy and
distributed. The law has to take into account changing realities not only
technologically but also socially or else it will lose credibility in the eyes
of the people…”.
The respondent contended that the
applicant could have approached Facebook, reported the abuse and asked for the
posting to be blocked. The judge found that “There is nothing before me to
assure me that Facebook would comply with such a request”.
[Currently, Facebook has a Defamation Reporting
Form
https://www.facebook.com/help/contact/732748663560891
intended for reporting content
posted on Facebook that you
believe is defamatory under the law
or otherwise violates your personal legal rights.]
The
judge then found that: “The applicant has been substantially successful
inasmuch as he came to court seeking an interdict and has obtained it. He is
entitled to his costs. The following is the order of the court: (a) The
respondent is to remove all postings which she has posted on Facebook or any
other site in the social media which refer to the applicant. (b) The respondent
is to pay the applicant’s costs in this application”.
No comments:
Post a Comment