Jurisprudence on Defamation on Social Media in Africa

In a South African case reported as Isparta v Richter 2013 6 SA 4529 (GP) the plaintiff instituted an action for defamation against the defendants following comments made by the first defendant on her “Facebook Wall”. The first defendant tagged the second defendant concerning the defamatory postings. For the first time in a South African court, damages were awarded for defamatory comments made on Facebook. The judge had to determine whether the alleged defamatory statements did indeed relate to the plaintiff and whether the comments, individually or collectively, could be considered defamatory. In the last instance, the judge had to decide what amount of damages would be appropriate for harm resulting from defamatory comments on Facebook.

The facts of the case are that the plaintiff, a senior manager employed by the South African Revenue Service, sued the defendants for defamation arising from the “posting” of certain comments on the First Defendant’s “Facebook Wall”. The plaintiff and the second defendant were married to each other, but were divorced after acrimonious litigation. The plaintiff and the second defendant are still engaged in consequent litigation. The plaintiff obtained an order for the committal of the second defendant for contempt of court. She also obtained an interim interdict against him, with a return date in September 2013. The ongoing litigation concerns the second defendant’s alleged failure to comply with a settlement agreement entered into between the plaintiff and the second defendant in their divorce proceedings. The plaintiff has remarried and the first and second defendants have married each other. The plaintiffs husband has a son aged 16, who lives with her and her husband. She also has two children from her marriage with the second defendant. They are a girl, P-A, then aged 6, and a boy, G, aged 4.
The first defendant posted several comments concerning the plaintiff on her Facebook Wall. In each case she tagged the second defendant. The judge found that two of these postings were defamatory. In the first posting the first defendant ridiculed the plaintiff’s alleged interest in her private life. She used the plaintiff’s first name as well as the names of her two children. The second defamatory posting appeared a bit later than the first. This posting referred to an incident where the sixteen-year-old boy was in the bathroom with his six-year-old sister. The posting in Afrikaans has been translated in English as follows: “To all moms and dads… what do you think about people who allow stepsons to bath little sisters every evening because it makes the mother’s life easier????
The posting attracted negative comments from viewers of the first defendant’s Facebook wall. The plaintiff, being the only person who gave evidence in court, explained the context of the bathroom scenario and this was accepted by the judge. The defendants admitted that the comments had been posted on the first defendant’s Facebook Wall and that the second defendant had been tagged to the comments. They offered no defence, apart from the fact that they were of the opinion that they had been entitled to publish anything they want about anybody because, they argued, Facebook is open for everybody to express their opinions.
The first issue for determination by the court was whether the two facebook postings referred to the plaintiff. It is trite law that A plaintiff in a defamation action must prove that the impugned statements are directed at him or her. If a plaintiff is not directly referred to in the defamatory statement, the plaintiff must plead the circumstances which would have identified him or her to the addressees.
In this regard, the court found that the plaintiff succeeded in showing that a reasonable reader of the postings would associate the comments with her even though the first defendant had three other facebook friends with a similar name of L to that of the plaintiff. However, there was one facebook posting where the plaintiff was not referred to by name. In this regard, the court accepted that one approach is as set out as follows by Viscount Simon LC in Knupffer v London Express Newspapers Ltd to determine whether defamatory material refers to the plaintiff where the plaintiff is not directly named. This test asks two questions namely: (a) can the words be regarded as capable of referring to the plaintiff? and (b) did the words in fact lead reasonable readers who know the plaintiff to the conclusion that they do refer to the plaintiff? Another approach set out in the same case by Lord Atkins who formulated the question as a single one as follows: “The only relevant rule is that in order to be actionable, the defamatory words must be understood to be published of and concerning the plaintiff.” Ultimately the court finds that regardless of which approach one adopts, the second posting (i.e. the one where the plaintiff is not referred to by name) unambiguously refers to the plaintiff.
The second issue for determination by the court was whether the two facebook postings were individually or individually and collectively, defamatory. In making an affirmative finding in favour of the plaintiff, the court stated as follows:

The first comment is to the effect that the plaintiff is meddlesome and interfering. It is a personal message addressed to the plaintiff. If the first defendant had an issue with the plaintiff, she could have addressed it with her personally However, she chose to publish it on Facebook where all her friends and friends of the plaintiff would read it. Although the first message does not constitute serious defamation, publication thereof on her Facebook wall was gratuitous and with the intention to place the plaintiff in a bad light.
The second impugned posting is scandalous to the extreme. It suggests that the plaintiff encourages and tolerates sexual deviation, even paedophilia Some of the defendants’ friends lapped it up with relish and added their own snide comments, compounding the damage to the plaintiff’s reputation.
I therefore find that both statements are defamatory, individually and collectively.

In the end, the court ordered that the plaintiff be awarded the sum of R40 000 in damages because the defendants did not want to apologise or retract the defamatory comments on their Facebook Wall.
In light of the above judgment and taking into consideration postings by users on social network services in general and specifically on Facebook, commentators note that Facebook users should in the future be exceedingly careful not only about what they post but also with regards to being “tagged” by other users.

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