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Defamation: The Evolution of Technology creating the Platform for Defamation

When considering social media and your personal rights, there are two conflicting rights that we are concerned with, Freedom of Expression and your right to Dignity. In order to figure out which right will take preference in a scenario will be a balancing exercise.

In order to understand the information that follows, one has to understand the definition of defamation. Defamation is the intentional publication of words or behavior that causes injury to a persons personality, i.e. their good name and reputation. Our biggest concern is the requirement of publication. What constitutes the publication of words or behavior? Publications could take on various forms such as text, graphics, audio or video. Examples of publications are:

  • Posting a defamatory message, post or image to a social media website such as Facebook, Twitter and Instagram;

  • Posting a defamatory message on a bulletin board;

  • Posting a defamatory message containing an allegation on a discussion forum of a website;

  • Sending emails;

  • Transferring files by the file transfer protocol;

  • The confidentiality of electronically transmitted content;

  • Internet memes and satirical content;

  • Liking and sharing defamatory content;

  • Youtube video clips;

  • Video conferencing.

Now that we know what constitutes the publication of defamatory content, what happens if the defamatory content is published, but does not come to the defamed persons attention? This usually takes place when the outsider is blind, deaf, illiterate, does not understand the foreign language it was posted in or the message is encoded. Our Courts held that when this happens it will not be regarded as a publication. But as soon as the person becomes aware of the content and he or she understands it then the requirement of publication becomes fulfilled.

This is taken further by "Neetling" wherein he proposed that there is a general rule that states that the publisher will be held liable for defamation if he was aware or could reasonably expect that an outsider would gain knowledge of the alleged defamation.

Once we have established that defamation has indeed occurred, there are several defenses that can be raised:

  • Truth for public benefit;

  • Fair comment;

  • Privileged occasion;

  • Media privilege;

  • Consent; and

  • Jest (joke), only in certain instances;

  • Intoxication, only in certain instances.

A very important point to note is that not only the person who originally published the statement will be held liable, but every person who repeats, confirms or draws attention to it will be liable (i.e. sharing, re-posting and liking content). This was addressed in the Isparta v Richter and Another case, where Acting Judge Hiemstra’s stated that:

[35] “The second defendant is not the author of the postings. However, he knew about them and allowed his name to be coupled with that of the first defendant He is as liable as the first defendant”

In this matter the first defendant posted comments that were defamatory on Facebook and tagged the second defendant in the post. This is quite concerning as the second defendant did not post anything, he was tagged by someone else. Thus if you are tagged in a post and you do not do anything about the tag then you could be liable as well. Let the reader beware.

Acting Judge Hiemstra’s explained that it concerns her that the second defendant “allowed his name to be coupled with that of the first defendant”. According to her one can control who “tags” you in posts and could remove yourself from the post.

But as writers explain, Hiemstra doesn’t seem to take into account the practical difficulty of removing oneself from these tags. But what can be seen from a number of courts are that the person who associates himself, repeats, adopts or re-publishes a defamatory statement will be held to have published the statement himself.

What could be learnt here is that you need to reconsider carefully what you post, re-share, tag, or mention any other mechanism or material that could be seen as defamatory. Perhaps exercise more control over your social media profiles and privacy settings. Also be careful of who you associate yourself with on these platforms. If someone tags you in a defamatory statement be sure to remove yourself and make a statement that you will not associate yourself with such behavior.

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