In a judgment handed down on 4 September 2013, in Isparta v Richter and Another, the North Gauteng High Court provided some important guidance about defamatory material published on Facebook.
The plaintiff sued her ex-husband (the second defendant) and his new wife (the first defendant) for defamation on the basis of comments that were posted about her on the first defendant’s Facebook wall.
A series of comments were posted by the first defendant on her own Facebook wall concerning the plaintiff. The second defendant was tagged in the comments but did not post any comments himself. Two of the posts were alleged to be defamatory. In one of the posts the first defendant posed the following question: “[t]o all mothers and fathers – what do you think about people who allow their teenage step-sons to bathe their younger step-sisters every night just because it makes the mother’s life easier?”. This question was alleged to be defamatory of the plaintiff because it suggested that she was a bad mother and had permitted an inappropriate relationship between her step-son and her daughter.
Four significant features of the judgment include:
First, South African law does not require that the defendant be the originator of the defamatory content. In other words, merely repeating a defamatory statement made by another person may constitute defamation. With regard to Facebook it follows that “sharing” a defamatory post would be sufficient to meet the publication requirement.
Further, the second defendant was held equally liable for posts authored by the first defendant even though he was merely tagged in the posts by the first defendant. This was so, according to the court, because the second defendant knew that he was tagged in the posts and allowed his name to be used.
Second, when determining whether content has a defamatory meaning, and whether the defamatory comments referred to the plaintiff, the judgment demonstrates that a series of comments posted on Facebook may have a defamatory meaning when read collectively.
In this regard the court found that the particular comments could not be said to refer to the plaintiff when examined in isolation. However, the comments formed part of an exchange of messages posted on the defendants’ walls within a period of a few hours. From this contextual analysis the court held that it was abundantly clear that they were all part of an attack on the plaintiff.
Third, the amount of damages awarded was relatively high if one considers the size of the audience to which the remark was made. Awards in defamation cases are generally not generous with typical awards against newspapers being in the region of ZAR 50 000 to ZAR 100 000 (and newspapers will generally have much larger audiences than posts on a Facebook page).
Lastly, the court emphasised the significant role that an apology can play and held that an apology using the same medium (Facebook) would have gone a long way towards mitigating the damage to the plaintiff’s reputation and, therefore, the amount of damages the defendants would have had to pay.
In the context of social media websites such as Facebook there are important points to bear in mind to minimise the risk of being held liable for defamation. These include:
First, if you have published a defamatory or potentially defamatory remark on Facebook an apology, or retraction in writing, in the same forum may help to minimise the amount of damages you would be held liable for.
Second, to minimise risk further, set your privacy settings on Facebook so that comments that you are tagged in are not immediately published on your wall (and must be individually approved before they appear).
Thirdly, if you have reason to suspect that a comment in which you are tagged is defamatory you should immediately untag yourself and thereby remove the comment from your wall.