YOU ARE WHAT YOU “LIKE”, “SHARE” OR “RETWEET”

In South Africa the use of smart phones and social media is ever increasing with a record 16 million Facebook users, 8 million Twitter users and almost 4 million Instagram registered across the country. As technology evolves, so should our social media laws. At present there isn’t one specific law which governs the use of social media in South Africa. The absence of these specific social media laws makes it difficult for people to identify the parameters within which they can operate in a social media environment.

As a society we have various encounters and contact with others.These interactions can range from face to face interactions to texting someone thousands of kilometres away. However, some negative interactions can result in defamation. Defamation is the unlawful and intentional publication of a defamatory statement concerning another person which subsequently has the effect of diminishing the good reputation of the person who has been defamed.

It has become popular for people to share posts on social media, which include status updates, photos, articles etc. People tend to post just about anything for “likes”, “shares” and “retweets”. There seems to be a misconception amongst many people that social networking sites offer an opportunity to voice opinions without any repercussions. Furthermore, it appears that there is a common misbelief amongst internet users that “liking”, “sharing” and “retweeting” a post will not get them into trouble, as they are not the authors of the post. This is where people are mistaken, because the law of defamation is equally applicable to speech on social media.

When someone gets tagged in a Facebook-post, this allows other persons (i.e. “friends” of the tagged user) to see the post. In South Africa there is an established principle that whoever repeats, confirms or draws attention to a defamatory statement will be held responsible for its publication.

In the case of Isparta v Richter, the wife of the Plaintiff tagged him in a Facebook post which was considered scandalous and suggested that he encourages sexual deviation and paedophilia.

The court held that the husband had the opportunity to remove the tag and distance himself from the post but that he hadn’t taken any positive steps to do so. Therefore, the husband drew attention to the post by not removing his “tag” and it could be considered that he associated himself with the defamatory statements.

This ruling also applies to other popular social networking sites like Instagram, Twitter, YouTube and Snapchat. Whoever “likes” or “shares”, a defamatory post can be held liable for defamation since the individuals confirm and repeat the posting of the first person or the author.

The law of defamation in South Africa can be complex. The courts have a duty to balance the conflicting constitutional rights, namely the right to privacy and dignity on the one hand, and freedom of expression on the other. People fail to realise that the right to freedom of expression can also be limited and does not trump another person’s right to their good name.

If you need professional legal assistance with a defamation claim, please contact our offices.

Mikhael Cain (Candidate Attorney)