With the advent and proliferation of the various social media platforms such as Facebook, Twitter and Instagram, there has been an increase in the number of defamation cases heard in courts arising from posts in social media. Even the President of the United States of America, who posted defamatory remarks on Twitter about a former employee, has been sued.
Defamation is the wrongful intentional publication of a false statement made by one person about another. For a defamation action to succeed, all the elements of delict must be present. The onus of proving defamation lies with the person alleging it. He must prove on a balance of probabilities:
- Publication (in print or digital media) or spoken word;
- The Statement – In South African law, for a defamatory statement to be deemed to have been “published”, it must be communicated to at least one person other than the person defamed. The statement must be false, as truth of a statement is a complete defence. In addition, the statement must be of public benefit (a distinction is made between what is of public benefit, for example, the exposure of a public official using state resources for his own benefit, and what is interesting to the public with no benefit (for example, salacious gossip). The statement should also be stated as a fact and not merely express an opinion. Depending on the facts, however, and the person who expressed an opinion, the opinion can be held to be a statement of fact;
- Reference to the Plaintiff – the test for this is an objective one. In other words, would a right-thinking person understand the statement to be one which refers to the Plaintiff; and
- Harm caused by the ‘defaming’ conduct. The Plaintiff must prove that there is a link between the harm suffered and the conduct. A business owner could do this by showing decreased business or income after the defamatory statement was made (all other factors remaining the same, i.e., the lost business can not be imputed to other factors which have also changed).
A defamation action requires our courts to balance two competing Constitutionally protected rights, namely, the Plaintiff’s right to dignity and privacy and secondly, the right to freedom of expression as can be seen from the action in RM v RB where the court established parameters/limitations for the protection of social media users. In this matter, a mother posted statements on her Facebook page referring to her daughter’s father’s wanton care, following the daughter’s weekend visit to the father. In the post, she referred to his use of alcohol and drugs. The Plaintiff claimed that the statements were defamatory and negatively affected his business. The court found the statements defamatory and ordered her to remove all posts referring to the Plaintiff. She was additionally ordered to pay the Plaintiff’s legal costs.
In balancing the rights, the court stated that while courts may order the removal of such posts, courts should not order Defendants to refrain from posting defamatory material in the future, as not all defamatory statements will be actionable. The Plaintiff’s attempt to obtain a final interdict prohibiting his wife from making future posts about him was unsuccessful as it was held that it would be too serious an infringement on the Constitutionally guaranteed right to freedom of expression.
In the first case on defamation via social media, Heroldt v Wills, an interdict was sought against the Defendant who had posted defamatory statements about the father of her daughter, calling him “not a proper man’” as he cannot take care of his daughters because of “all the drugs, alcohol and church”. The court found the statements defamatory and ordered that she delete all posts referring to the Plaintiff and pay his costs.
What may not be apparent to users of social media is that one does not need to be the originator of the defamatory posts. The action of sharing the post or even not distancing oneself when tagged on such a post will result in liability, as found by court in the Isparta v Richter case. In the latter case, the first Defendant (the Plaintiff’s ex-husband) posted a series of defamatory statements about the Plaintiff, calling her a bad mother who allowed an improper relationship between her daughter and stepson. In all of his posts the second Defendant was tagged. Even though she did not comment, she was found liable for R40 000 in damages jointly and severally with the husband who had posted. It is decided law that anyone will be held liable and accountable for failing to distance themselves from any defamatory posts in which they may be tagged.
RM v RB 2015 (1) SA 270 (KZP)
Heroldt v Wills  JOL 31479 (GSJ)
Isparta v Richter  ZAGPPHC 243 (GNP)