Law of social media

Unforeseen tensions in balancing rights

Unforeseen tensions in balancing rights
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While the founders of South Africa’s Constitution could not have foreseen the tension that social media would create for rights to privacy and to freedom of expression, a recent court ruling brings clarity to the issue of defamation on social media platforms.

Rosalind Davey, partner at pan-African corporate law firm Bowman Gilfillan, commented that in the landmark decision the South Gauteng High Court determined an application for an interdict where an allegedly defamatory comment had been posted onto Facebook. Despite repeated requests by the applicant, the respondent refused to remove the post.

“In analysing the post, the court had regard to the common law rights to privacy and to freedom of expression. However, Justice Willis confirmed that the founders of the Constitution could not have foreseen the tensions that social media would create for these rights, which in this case, were in conflict and had to be weighed up against each other.”

The post read: “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 court confirmed that the right to privacy is an independent personality right, and that the law of defamation protects the right to privacy and the right to good name and reputation.

When faced with an invasion of privacy claim, a court needs to consider the defences which arise out of our law of defamation. In assessing the defamatory nature of a comment, the court confirmed that the primary test is whether a reasonable person would understand the words to be defamatory. The court noted that the fact that the published statement may be true is not, of itself, a defence to a claim of defamation. Where a statement is true, it must also be for the public benefit.

The respondent argued that the offending post was not intended to defame. Instead her intention had been to encourage the applicant “to reflect on his life." The court was not convinced and held that the post had been motivated by malice. It was satisfied that the remarks were defamatory and that the applicant’s right to privacy and to good name and reputation had been unlawfully infringed.

“In determining whether or not to interdict the respondent, the court confirmed that while social media is a subset of electronic media, this does not mean that all electronic media is social. The court noted that the speed with which social media travels, the speed with which statements can be removed and the minimal costs of such removal are relevant factors to consider when analysing what remedy is available and most appropriate,” said Davey.

In considering the historical reluctance of our courts to interdict publications in the media, the court said this arose from the chilling effect that such orders may have on freedom of expression. The court stated that as social media is not primarily news media, the courts may be justified in adopting a different attitude towards the removal of statements made on social media.

In granting the interdict, the court’s view was that it is better to focus on the conduct of the wrongdoer than to order Facebook to take down the offensive post, particularly in instances where there are no assurances that Facebook will comply. The court accordingly granted a mandatory interdict ordering the respondent to take down any posts pertaining to the applicant on Facebook and any other social media sites.

Davey explained that while “case law relating to social media is slowly emerging from various jurisdictions, this judgment is the first of its kind in South Africa. It is tailored to our laws as they currently stand but concurrently emphasises the need for our law to engage with and develop alongside changes in technology.

“I am of the view that while this case relates to a dispute between individuals, its principles would find equal application in instances where corporations have been defamed by employees, consumers or competitors on social media platforms," Davey concludes.

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