Pretoria - A law firm has lost its urgent application to gag a former client who voiced his dissatisfaction about the services he had obtained from the firm on social media.
The law firm, Van Deventer Inc, headed to the Gauteng High Court, Johannesburg, to restrain Sizwe Mdakane from making any comments on social media about it. It also wanted the court to direct him to remove any comments he had already posted.
Judge Stuart Wilson dismissed the application a few days ago, but he has now given his reasons for it.
Mdakane was one of Van Deventer’s clients. After having received advice from junior practitioners at the firm, Mdakane posted a review about the firm on “Google Review”. In the posting he voiced his disappointment about the advice he had received.
Van Deventer Inc took the view that this post defamed it, and demanded Mdakane remove the post forthwith. Mdakane did not remove the post, but edited it somewhat so that it did not come across as harshly as his first post.
In the second post he said, “I was disappointed by the answers I received to my question during consultation. I guess I expected too much.”
Dissatisfied, Van Deventer Inc instituted an urgent application. It argued that the first post was defamatory, because it implied the firm was “unprofessional, dishonest and untrustworthy”. Judge Wilson commented that a publication is defamatory if it tends to lower the person defamed “in the estimation of the ordinary intelligent or right-thinking members of society”.
He said the test is objective. “What matters is not what the publisher intends, but what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test, the reasonable reader would understand the statement in its context and that he or she would have had regard not only to what is expressly stated but also to what is implied,” the judge said.
Although Mdakane’s language in his initial post was strident – and perhaps inappropriate – the court does not think a reasonable reader of the post would think less of Van Deventer Inc as is claimed by the firm, he said.
“The reasonable reader is not a naïve, gullible individual who believes everything they read is literally true.”
In his initial post Mdakane made reference to the word “scam” regarding his interaction with the firm.
Judge Wilson said the reasonable reader would not have assumed that, in the context of the review, the word “scam” was meant as dishonesty.
“‘Scam’ has a common secondary and vernacular meaning, which conveys something more akin to the practice of offering inferior or disappointing service. The only reasonable meaning that can be attributed to the post is not that the firm is dishonest, but that Mr Mdakane was disappointed with the service he received.”
The judge added that the average reasonable reader of a Google Review would not automatically conclude that Mdakane’s disappointment was due to malpractice or ineptitude. “They would conclude simply that the post reflected Mr Mdakane’s subjective (and unsubstantiated) disappointment with the firm,” the judge said.
The post, as amended, is plainly an innocuous record of Mdakane’s dissatisfaction with the advice he received, coupled with an admission that his expectations may have been unrealistic, the judge said.
“I am accordingly unable to conclude that Mr Mdakane defamed Van Deventer Inc. Even if I am wrong, the fact that Mr Mdakane amended the post to its innocuous later form before the application was launched ought to have assuaged any apprehension of harm anyone at Van Deventer Inc may have felt on reading the initial post.”
There was no suggestion that Mdakane had posted anything else about the firm, and no conceivable basis on which the post in its final form could be said to be defamatory, he said.
“The application was accordingly wholly unnecessary. The relief Van Deventer Inc sought was clearly inappropriate. It wanted a total ban on Mr Mdakane saying anything at all about the firm online in future. That relief could never have been granted, even if Mr Mdakane’s post was defamatory.”
Pretoria News