Social Media
Social Media: Photo by Tim Bennett on Unsplash

A South African law firm is warning people of the dangers of publishing, sharing and forwarding defamatory messages on social media, Facebook, WhatsApp, Twitter and TikTok.

Cliffe Dekker Hofmeyr wrote in a note that that South African law considers repeating or sharing defamatory content as sufficient to constitute “publication” and, thus, defamation in its own right, even if the repeater or sharer was not the author of the original defamatory post.

“So just by clicking share, you could be perpetuating the defamation, exposing yourself to a damages claim for defamation or to potential dismissal by your employer,” Timothy Smit and Elizabeth Sonnekus of Cliffe Dekker Hofmeyr wrote in a note.

The Constitutional Court in Le Roux v Dey 2011 3 SA 274 confirmed that the law of defamation is designed to compensate a victim for any publication that injures the victim in their good name and reputation.

The court set out the elements of defamation succinctly as the wrongful and intentional publication of a defamatory statement concerning the wronged party.

The law firm explained that before the internet, what constituted “publication” was limited generally to hardcopy print. But with the advent and evolution of electronic communication, the internet and social media, examples meeting the requirement of “publication”, as set out in the Le Roux case, will self-evidently include email but also:

  • posts on all social media platforms including Instagram, Facebook, Twitter, LinkedIn, and TikTok included;
  • WhatsApp messages;
  • comments on online news articles; and
  • any other publicly accessible medium.

With 1.62 billion users visiting Facebook each day (as at 4 May 2020) – and approximately 145 million daily active users on Twitter (as at 30 November 2019), the chances of a defamatory post going undetected are slim – in fact, you have a higher chance of the opposite result – going viral.

“The internet and social media are immensely powerful but so dangerous for the innocent and unwary. Many children have access to electronic devices and social media platforms, and it is so important that children are aware of the grave consequences of irresponsible conduct, consequences that might only be manifest years down the line,” said Smit and Sonnekus.

“Just like an elephant, the internet never forgets.”

Smit and Sonnekus added that we should have no sympathy for bigots and online “trolls” – they should get what’s coming to them.

“But children, young adults and the uninitiated need to be made aware that, no matter how innocently they publish or share something online, that publication could jeopardise their future.

“The last thing anyone wants, having posted rashly or carelessly, is to be left quoting JK Rowling’s Rubeus Hagrid: “Shouldn’t have said that…I should not have said that…shouldn’t have said that!”.”

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