Legal Trouble for Social Media Comments in SA

This blog post is based on an article by Quinton Bronkhorst from BusinessTech, and can be found here.

The South Gauteng High Court has set a new legal precedent after it granted a South African Facebook user an interdict preventing a friend from posting about his personal life on the social network after she defamed him on the site.

In a first for South Africa, you may now have to be a little bit more conservative when posting about the intricacies of your friends’ personal lives on Facebook or other social media – or face a case of defamation.

The case was brought before the court after a Facebook user posted a status update about a party he attended, and was met with the following comment from a friend:

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?

In response to the comment, the user took the matter to court, claiming that the comment defamed him on a number of grounds.

In his application, the Facebook user sought to block the friend from making any more posts about him on social media – as well as an order that she be arrested for 30 days should she fail to comply.

In the subsequent ruling, Judge Nigel Willis tackled the defamation case mindful of social media and its current role in society.

Judge Willis ruled that he could not find any evidence that Facebook would comply with a request to take the offending comment down – and said that it’s better to tackle users, rather than Facebook itself, in matters of privacy.

“If one wants to stop wrongdoing, it is best to act against the wrongdoers themselves,” he said.

Unlawful posting

“In our law, it is not good enough, as a defence to or a ground of justification for a defamation, that the published words may be true: it must also be to the public benefit or in the public interest that they be published.”

“A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The courts do not pander to prurience.”

“I am satisfied that it is neither to the public benefit or in the public interest that the words in respect of which the applicant complains be published, even if it is accepted that they are true.”

Judge Willis went on to say that in the defence of “fair comment” – the onus fell on the friend to present the evidence that her views were justified.

“She has been unable to justify her posting…The background to the posting, together with the words themselves, indicates that the respondent acted out of malice when she posted the offending comments.”

Watch what you say

In the final ruling, the court did not grant the Facebook user’s request to indefinitely block all comment made by his friend about him – and there was no precedent set for arrests to be made.

In the ruling, the court granted an interdict, ordering the friend to remove her comments about the user from social media, and to pay the application costs.

“Those who make postings about others on the social media would be well advised to remove such postings immediately upon the request of an offended party. It will seldom be worth contesting one’s obligation to do so,” Judge Willis said.

“After all, the social media is about building friendships around the world, rather than offending fellow human beings. Affirming bonds of affinity is what being ‘social’ is all about,” he said.

The full social media judgement can be found in PDF format from SAflii.org.