1 Jun 2015
We have ancient common law rights both to dignity and freedom of expression, both of which have been enshrined in our Constitution. Social media has caused tensions between these rights in ways that could not have been foreseen by our legal forefathers. The question then remains, is our right to freedom of expression untouchable? Or can we still find ourselves liable for defamation by sending our thoughts into the world wide web…?
DEFAMATION
The law of defamation is mainly concerned with protecting the good name or reputation of both natural and juristic persons. A well known definition of reputation is from De Villiers CJ in O’Keefe v Argus Printing and Publishing Co Ltd: “A person’s reputation is that character for moral or social worth to which he is entitled amongst his fellow-men.” In other words, it is what others think of you as a person. Dignity, on the other hand, is what you think of yourself. The Constitution protects reputation via the right to dignity.
Defamation is the wrongful and intentional publication of defamatory material that refers to the person not making the statement. The right to reputation is often pitted against the right to freedom of speech and expression, both these rights are equally esteemed by society and it therefore becomes a balancing act to protect reputation in a way that does not frustrate freedom of communication
There is currently no legislation dealing specifically with social media, we need to therefore look to other statutes and the common law to determine what constitutes social media law until this part of the law is more developed.
In H v W 2013 (5) BCLR 554 (GSJ) Judge Willis dealt with an application for an order interdicting and restraining the respondent from posting on Facebook information pertaining to the applicant on Facebook. The respondent had posted a comment on Facebook that insinuated that the applicant was an unfit father and user of drugs and alcohol.
The court ordered the respondent to remove all postings that she had posted on Facebook that referred to the applicant, and pay the applicant’s legal costs. There was no claim for damages in this matter.
Furthermore, the posting of offensive and derogatory comments on social media by employees has been recognized as a fair reason for employers to dismiss them. The CCMA has indicated (through recent case law) that what an employee says online plays a role in determining the substantive fairness of a dismissal. Apart from the possibilities of facing legal action or being dismissed by your current employer, it is essential to remember what your digital CV looks like. Prospective employers are always (and if they are not, they should be) looking at your digital footprint. If you post something online a simple Google search will pull it out of the internet and to the attention of an interested employer. How would you prefer your digital footprint looks like should you look back on it in a few years?
Written by Kestrel Carstens
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.