ANALYSIS | Michael Matlapeng: How to avoid defamation on social media – and what are your defences
There's tension between freedom of expression on the one hand and the right to human dignity on the other in the boom of social media, writes advocate Michael Matlapeng.
Politicians and businessmen are also not immune from dragging each other to court whenever things turn sour between them.
On 30 May 2019, the South Gauteng High Court in Johannesburg ordered EFF leaders Julius Malema and Mbuyiseni Ndlozi to remove a statement from social media which contained defamatory allegations against Trevor Manual and were ordered to pay R500 000.
The case was remitted to the High Court by the Supreme Court of Appeals to determine the damages they are liable for.
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Former minister in the Jacob Zuma administration Derek Hanekom successfully sued Zuma and was granted damages worth R500 000 by the KwaZulu-Natal High Court in Pietermaritzburg after he tweeted that Hanekom was a ``known enemy agent``.
Zuma had to issue an apology after the Constitutional Court dismissed his appeal on 9 August 2020, citing no reasonable prospects of success in the appeal.
What do all these cases have in common?
They involve the tension between freedom of expression on the one hand and the right to human dignity on the other in the boom of social media. They also give an example of how expensive social media can be.
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Constitutional framework offering protection to social media users
Section 16 of the Constitution provides and protects freedom of expression.
It states everyone has the right to freedom of expression which includes the freedom of the press and other media, the freedom to receive or import information or ideas and the freedom of artistic creativity. This right, like most rights in the Bill of Rights, can be limited.
While everyone is free to express themselves in any manner they wish, no one is allowed to encroach on the other’s right to human dignity or good name. Section 10 of the Constitution states: “Everyone has inherent dignity and the right to have their dignity respected and protected.”
An individual’s reputation is central to his or her sense of self-worth and dignity. The importance of freedom of expression cannot, however, be overstated.
What is defamation?
Defamation consists of the wrongful and intentional publication of a defamatory statement concerning a person. In order to be successful with a claim for defamation, the plaintiff, (the person whose dignity is harmed by the publication) must first prove that the publication of the defamatory matter concerns himself/herself.
Once that is proven, there exists a presumption of unlawfulness and the intention to defame on the part of the person who made the publication. Whether a statement is defamatory, depends on the natural or ordinary meaning of the words used, considered in the context of the publication as a whole.
Where the plaintiff is satisfied and rely on the argument that the published statement is defamatory, the court will commence on a two-stage enquiry to establish the following: first, the ordinary meaning of the statement, second, an enquiry will be made as to whether the statement/publication is defamatory.
In establishing the ordinary meaning, the court is only concerned of what meaning the reasonable reader of ordinary intelligence would ascribe to the statement. The court is not concerned with the meaning which the publisher of the statement intended to convey. Nor is it concerned with the meaning given to it by the persons to whom it was published, whether or not they believed it to be true, or whether or not they then thought less of the plaintiff. This is an objective test/enquiry.
In applying the test, it is accepted that the reasonable reader would understand the statement in its contexts and that he or she would have had regard not only to what is expressly stated but also to what is implied.
What are the defences the defendant can raise on a claim for defamation?
The defendant (the person who made the defamatory statement) can raise a complete defence of truth and public interest. The meaning of the words used must be substantially true in order for the defence to succeed. The defence of public interest is also available to the defendant only when the other defences are also in the public interest.
If the defendant is the media, they can raise a defence of reasonable publication, which is available to the media, to rebut the unlawfulness of the publication of defamatory material. The publication on the press of false, defamatory allegations of fact, will not be regarded as unlawful if, upon the consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts, in a particular way and at a particular time.
In considering the reasonableness of the publication, the court will take into account the nature, extent and tone of the allegations made against the plaintiff. However, there can be no justification for the publication of untruths.
Conclusion
Social media has taken the communication world by storm. Millions of people all over the world are using it as a form of interaction which can be both good or bad.
This ease of access to each other can sometimes manifest and bring out the worst in people and can prove to be expensive and to your detriment. This detriment is aptly demonstrated in the cases cited above as well as many others…
We must be accountable to our words at all material times as the courts always play a special role in balancing our rights.
This article was originally published by news24.com