Learn how South African law treats defamation on social media, including key legal principles, real court cases, and practical advice for individuals and businesses.
Written by Roy Bregman, an admitted attorney with over 51 years’ experience in South African law,
including defamation, social media law, and privacy.
Naming and Shaming on Social
Media: What South African Law Says
Introduction: The Legal Principles of Defamation and
Social Media
Social media has changed the way we communicate, giving
everyone a platform to share opinions, experiences, and grievances instantly.
But with this power comes responsibility. In South Africa, posting about
someone or a business online, especially to “name and shame”, can have serious
legal consequences. Defamation law applies to Facebook, X (formerly Twitter),
Instagram, WhatsApp, and any other platform where you can publish information
about others.
Defamation is when someone wrongfully and intentionally
publishes content (written, spoken, or visual) that is seen by at least one
person, other than the subject, that unfairly harms another’s reputation in the
eyes of reasonable people or lowers a person’s standing in the community.
Yes, that includes status updates, comments, memes, and
retweets. If you “like,” “share,” or “retweet” a defamatory post, or even tag
someone in one, you could also be held liable. The law is clear: what you
say online is treated the same as what you would publish in a newspaper or say
in public.
The Role of Truth and Public Interest
Many people believe that telling the truth is always a
defence. This is not correct. In South African law, the statement must be both
true and in the public interest. If you post about someone’s private affairs, even
if true, but it doesn’t serve the broader public good, you could still be found
liable for defamation.
Hate Speech and Social Media
Hate speech is any expression that incites violence or
discrimination against a protected group (race, gender, religion, etc.).
Freedom of expression, protected by the Constitution, is not absolute. It does
not cover defamation, hate speech, or incitement to violence, and such posts
can lead to both civil and criminal liability.
Case Law: Real Examples from
South African Courts
The Cawood Attorneys Case
A South African law firm, Cawood Attorneys, was falsely
accused on Facebook of stealing COVID-19 funds and acting dishonestly. The
businesswoman who posted these allegations was ordered by the Middelburg High
Court to remove the posts and refrain from making further defamatory remarks.
The court also held Facebook accountable, ordering it to uphold the law
regarding defamatory remarks and hate speech. The businesswoman was ordered to
pay the legal costs.
Isparta v Richter (2013)
In this case, the court awarded damages for defamatory
comments made on Facebook. The defendant had tagged another person in the
defamatory post. The court found that not only the author but also those tagged
or associated with the post could be held liable. This case set a precedent
that sharing, liking, or tagging defamatory content can make you legally
responsible.
Heroldt v Wills (2013)
Heroldt sought an interdict against Wills for posting a
defamatory Facebook message accusing him of being an unfit parent. The court
found the post defamatory, as it would lower Heroldt’s reputation in the eyes
of reasonable people. The court ordered Wills to remove the post and pay legal
costs.
Dutch Reformed Church v Sooknunan
The creator of a Facebook page was held responsible for
defamatory messages posted by others on that page.
Casilli v Facebook SA
The court addressed whether Facebook SA or Facebook Inc. was
responsible for removing defamatory content. Eventually, Facebook Inc. agreed
to remove the content after a valid court order was obtained.
Practical Guidance: How to
Avoid Legal Trouble on Social Media
Think Before You Post
- Always
check your facts before posting anything negative about someone or a
business.
- Ask
yourself: Is this true? Can I prove it? Is it in the public interest, or
just interesting to the public?
- Avoid
posting anything that could be seen as incitement, hate speech, or
discrimination.
What To Do If You’re Defamed
- Request
the person to remove the post.
- If
they refuse, you can apply to court for an order to have the post removed
and to prevent further defamatory posts.
- You
can also claim damages for harm to your reputation.
Employer Policies and
Dismissal
- Many
employers have social media policies. Employees have been dismissed for
derogatory posts about their company, colleagues, or management.
- Even
private comments or sharing internal business matters can result in
disciplinary action.
Conclusion: The Power and
Peril of Social Media
Social media is a powerful way to share information and call
out wrongdoing, but it can also be legally risky. Naming and shaming someone
online might feel like justice, yet it can easily amount to defamation or hate
speech, which the law treats as seriously as anything published in a newspaper.
South African law protects every person’s dignity and reputation, and even if
what you say is true, it must also serve the public interest to be a valid
defence. You could be held legally responsible not just for posting, but also
for sharing, commenting on, or even liking harmful content. While platforms can
be ordered to remove defamatory posts, the main responsibility rests with you, so
think carefully before you hit "post."
When in doubt, seek legal advice before posting.
Frequently Asked Questions
(FAQ)
Q: Can I get sued for naming and shaming someone on
Facebook?
A: Yes. If your post harms someone’s reputation and is not both true and in the
public interest, you can be sued for defamation.
Q: Is it defamation if what I say is true?
A: Not always. The statement must also be in the public interest, not just
interesting to the public.
Q: What should I do if I’m defamed online?
A: Ask the person to remove the post. If they refuse, seek legal advice and
consider applying to court for an order to remove the content and prevent
further posts.
Q: Can I be held liable for sharing or liking a
defamatory post?
A: Yes. Sharing, liking, or tagging someone in a defamatory post can make you
legally responsible.
Q: Are there defences to defamation?
A: Yes. Truth and public interest, fair comment, and privilege are possible
defences, but they have strict requirements.
Need advice?
Let’s chat about your options.
👉 www.bregmans.co.za
☎️ 011 646 8411 | ✉️
info@bregmans.co.za
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