3 October 2022 by and Employment Law Alert

’I tweet what I like’ – Social media and the risk of defamation

Social media has transformed our modes of communication, access to information and speed of transfer of information. Different social media platforms will forever be part of our lives and ways of interacting with other people in both professional and personal settings.  

As the Supreme Court of Appeal (SCA) noted in Economic Freedom Fighters and Others v Manuel [2021] 1 All SA 623 (SCA) (Manuel)), social media platforms like Twitter, Facebook and others, have provided ordinary members of society with publishing reach beyond print and broadcast media’s capabilities. There is no doubt a direct correlation between the increase in defamation cases both internationally and locally, and the ability to express one’s views to a large audience at the mere click of a button.

With the ever-growing use of social media, the spread of misinformation and damage to individuals and institutions, it is useful to revisit the principles of defamation in light of the recent judgment in Daily Maverick (Pty) Ltd and Another v Modibe Julius Modiba case no: 33428/2020. In this case the High Court (Gauteng Division) was confronted with a defamation case stemming from the posting of a series of defamatory tweets. The Daily Maverick, an online news and information service and others (applicants), instituted proceedings against a certain Modibe Modadiba (respondent). From 17 January 2019, and over a period of 10 months, the respondent submitted unsolicited columns to the Daily Maverick, four of which it published. No reward was offered to the respondent, whether in cash or kind, as was customary with all guest columnists. In June 2019, an article by the respondent entitled “Why Zindzi Mandela should be protected” was editorially considered unfit for publication because it was poorly written and incoherent. The respondent submitted more columns which were also considered unfit for publication. One of them, an article about the establishment of a national women’s football league, was rejected because it lacked depth, and another on Pan-Africanism because it was too short for a Daily Maverick column, was incoherent and lacked a real conclusion. The respondent ceased to submit articles to the Daily Maverick. Instead, on 3 January 2020 he posted a message on the social media platform Twitter, alleging that “I took a decision to stop writing /sending articles to the Daily Maverick. They only publish articles where you criticise black leaders /ANC, or EFF. Once you start writing about anything which is seen as ‘anti-white’, they have a problem (Let’s create our platforms)”. The respondent continued to post a series of similar tweets, and further alleged that the applicants were engaged in a concerted campaign to mobilise students and social media influencers to spread fake news regarding certain individuals and organisations for payment.

Defining defamation

In considering the matter, the court defined defamation as any damaging statements made publicly with the intention to harm or damage someone’s good name and reputation. With reference to the important Constitutional Court decision in Le Roux and Others v Dey 2011 (6) BCLR 577 (CC), the court explained that defamation is established by applying a two-pronged test – first, to determine the meaning of the publication as a matter of interpretation; and second, whether that meaning is defamatory. The court went on to state that defamatory statements are presumed to be false and to have caused damage to their target. The requirement of wrongfulness and intention is deemed to be present once a person has proven publication of a defamatory statement concerning the plaintiff. A defendant wishing to avoid liability for defamation must then raise a defence which disputes unlawfulness or intention.

Given that the respondent did not participate in the court proceedings and thus did not dispute the applicant’s version, the court accepted that the tweets in question were false and defamatory. The court reasoned that the words used were obviously defamatory, as a reasonable reader would understand the words to mean that the Daily Maverick and its journalists lack integrity, are unethical, and drive a secret agenda to tarnish the reputation of specific individuals and organisations by deliberately engineering fake news about them. The court further reasoned that the allegations contained in the tweets were believed and taken seriously by the Economic Freedom Fighters, IOL and the Information Communication & Technology Union. As the applicants proved the elements of defamation, the respondent’s statements were deemed untrue. The respondent was ordered to issue an unconditional retraction and to pay R100,000 in damages. That’s a sting to any individual. 

 

Recognised defences

It is important to note that there are several recognised defences available to someone who has published defamatory statements, such as the defence of truth, public interest, fair comment, or reasonable publication.

Although social media has had a similar effect in South Africa to other jurisdictions globally, there is, however, no uniform approach to defamation. In the Manual case, with reference to the UK judgment of Reynolds TD v Times Newspapers Ltd, which provided a comprehensive survey of the approach taken in the US, Canada, India, Australia, South Africa and New Zealand to issues of the media’s liability for defamation with regards to public figures, political expression and the requirement of reasonable care in publishing defamatory statements, the SCA noted that each society has found it necessary to address this issue in its own way and in accordance with its own legal principles. Some have addressed the problem by developing common law principles, some have resorted to statute, and others have found answers through a blend of constitutional principle and common law development.

Conclusion

Social media comments attract defamation complaints and there has been a distinct rise in these in recent years, with a number of cases coming before our courts. This trend will continue. The general legal principles applicable to defamation cases have stood the test of time and have been applied by the courts to deal with social media posts.

So, think before posting on social media. Before circulating a message the author, and anyone who forwards the message, must be certain that it is not defamatory or they could face the risk of a complaint. It is worthwhile remembering that the constitutional right of freedom of expression does not extend to the right to defame another. Our law is now clear.

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