Johannesburg - We all love freedom of expression. One would agree that this is one of the most important Constitutional rights granted to every citizen in South Africa. But it is not an unlimited right.
Legal implications from what is put out on social media have shown us that while we are granted freedom of expression, we cannot quite say whatever we want and think we can get away with it.
According to the Director of Employment Law at law firm Cliffe Dekker Hofmeyr, Phetheni Nkuna, the legal definition of defamation is something written or said that is made public with the intention to harm or damage someone’s good name or reputation.
“Defamation doesn’t just happen when you’re a public figure or a celebrity, and it is not limited to instances where whatever is being published relates to dishonest or dishonourable conduct. Defamation can also mean that a statement or content that is published exposes one to hatred and humiliation,” Nkuna said.
The basis for defamation is established via a “two-prong test” which is a practical application of the objective test, which is how defamation is determined. The two-prong test simply answers the question whether a reasonable person of ordinary intelligence seeing a particular statement, can determine whether it is defamatory.
“The two-prong test considers not only what is expressly published, but what is implied by the content published as well,” she said.
On how the law relating to defamation is interpreted and applied within a social media context, Nkuna said the South African judiciary has evolved over time and that it has appreciated the impact of electronic media and how it has widened access to the masses.
Some of the recognised defences for those who have published defamatory statements on social media is that if what is published is true, then chances of one getting away with it are high, Nkuna said.
“The truth is the founding principal over whatever you post. You don’t want to be a perpetrator of fake news. What will also be considered is whether what is published is in the interest of the public,” she said.
So what rights to recourse do employers have, whose employees have been found to be posting defamatory statements about the company or its representatives online?
Nkuna said employees could end up with a civil suit or can potentially lose their jobs from posting defamatory statements about their employers on social media. This could also affect future job prospects.
“It is advisable to get off social media when you find yourself in the heat of the moment because it can save you a lot of trouble,” said Nkuna.
Social media has made its way into almost every aspect of our lives and has become one of the most prominent forms of communication. It has radically transformed our modes of communication, access to information and, of course the speed of the transfer of information.
It has become a key facilitator of our everyday interactions with friends, family, colleagues and even strangers. But there are inherent dangers, given the public nature of these platforms.
As the Supreme Court of Appeal (SCA) noted, social media platforms such as Twitter, Facebook and others have provided ordinary members of society with publishing reach beyond print and broadcast media’s capabilities.
There is no doubt that a direct correlation between the increase in defamation cases both internationally and locally, and the ability to express one’s views to a large audience at the mere click of a button, exists.
The intersection between the constitutionally protected right to the freedom of expression, with one's propensity to defame another can be blurred.
Take the late KwaZulu-Natal realtor, Penny Sparrow, for example who rose to infamy after describing black people as “monkeys” in a Facebook rant in 2016. Sparrow was later found guilty of hate speech in the Equality Court. As part of her sentence, Sparrow was ordered to pay R150 000 to the Adelaide and Oliver Tambo Foundation. This case was the first of many social media outbursts that caused a lot of uproar worldwide.
Last year, media personality Bonang Matheba opted to sue a podcaster Rea Gopane for R500 000 after a video of him went viral, following the tragic death of her ex-boyfriend rapper AKA’s fiancée Anele “Nellie” Tembe in April last year.
In the video, Rea made allegations about the circumstances around Anele’s death and how, at her funeral, her father – Durban businessman Moses Tembe, had alluded to his daughter possibly having a problem with substance abuse.
Rea’s co-host warned him not to speak about things he has no evidence of, but the podcaster continued.
After the video went online, Matheba took to social media to ask if anyone had Rea’s email address. She then served legal papers to him, related to defamation proceedings.
Five things you need to know about social media and SA law
Always think before you post anything on social media – Social media users need to be careful about what they post on Facebook and Twitter.
You can be sued for tweeting a statement that could cause harm to others – Even if you did not post the original content, but shared or retweeted a malicious tweet, which is seen as an endorsement of said content, legal action can be taken against you. Everyone found to have contributed to the false statement or defamatory content, could be held liable for defamation.
Stealing someone’s images is theft – Sharing content as if it’s your own, without permission to share that content or giving credit to whoever created the content, could land you in trouble.
You can get fired for things you say on your personal social media profiles – Often social media users would have the disclaimer that “views are my own/do not reflect my employer’s” on their profile. If you share malicious content about your employer on social media, your employer can dismiss you as a breakdown in the working relationship, or a breach of trust, could have taken place.
Misleading the public could lead to serious trouble – This is of particular importance for influencers and bloggers. Often we see posts put up by influencers and bloggers about certain products or services on social media where they add the hashtag “#ad” or “#sponsored” at the end of the post. If a brand has “paid” you to advertise a certain product or service, you must put a disclosure in your communication that shows that you have received something of value in exchange for the content. Whether it is by add #ad, #spon, #sponsored or #ambassador to your posts, you should make it absolutely clear that you have a relationship with the brand.