With over a billion users, Facebook has become a powerful place for businesses to create awareness of their offerings and services and to engage one-on-one with potential clients. Unfortunately, it also gives a massive platform to the “unhappy” and can be damaging to business and individuals. So, does “freedom of expression” trump defamation and other laws when it comes to posting on social platforms like Twitter and Facebook? Bottom line: Know the law and proceed with caution. Here’s why . . .
Defamation may be defined as “the wrongful, intentional publication of words or behaviour in relation to another person which has the effect of injuring his status, good name or reputation”. Publication of issues on social media platforms fall under the same laws that govern printed press and users are cautioned by a popular online “meme” that suggests: Think before speaking. Think twice before writing. Think three times before posting to Facebook.”
In a recent decided case in South Africa, the Honourable Justice Willis considered granted an interdict in respect of defamatory statements made on Facebook. Basically, Mr A sought an interdict against Mr B for posting a message on Facebook which was defamatory in nature. The message insinuated, among other things, that Mr A was not looking after his daughters as he was either “on alcohol, drugs or involved at the church”.
The comment was also made that when Mr A – once a close friend and business associate of Mr B – looked at himself in the mirror he would probably be in a “drunken testosterone haze”. Mr A believed these comments to be defamatory in nature and sought to obtain an interdict from the High Court to compel Mr B to remove these postings.
The Court found the comments made by Mr B to be unlawful and that the comments were not fair or in public interest and ordered that Mr B remove all postings he had made in this regard on Facebook and to pay for Mr A’s legal costs.
Whether posting comments about individuals or businesses, the legal system deems “fair comment” to be information “based on facts expressly stated or clearly indicated and admitted or proved to be true”. The fact that social media users can write – or pass on – any information they choose doesn’t mean they should. There is a fine line between “personal opinion” and “defamation” where individuals post comments using company or individual’s names, and either state or infer what may be seen as defamatory.
To determine whether words published are defamatory, one should ask whether a reasonable person of ordinary intelligence might reasonably understand the words to convey a defamatory meaning. Courts may well take note not only of what the words expressly say, but also of their possible implication.
While freedom of expression is a constitutional right in South Africa, it is not an absolute right; meaning that if anything you say – or publish on social media – has a negative impact on the rights of other (even one other), then your right to freedom of expression may be limited. As a general rule, bear in mind that “feelings are not facts”, and a court will initially try to determine whether a post made on social media is both true and in the public interest. Defaming individuals or companies using statements that cannot be backed up by fact and substantiating evidence could land you in hot water.
For purposes of brand protection and reputation management, companies should have a written social media strategy in place – and made clear to all employees – to ensure their employees do not engage in activities on social media that may harm the reputation of the company; incite harm based on race, religion, ethnic background, gender, sexual preference; or disclose sensitive information about the company.
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