The High Court of South Africa ruled in Isparta v Richter that a Facebook user was guilty of defamation because a defamatory post appeared on his Facebook wall and was not removed by him, even though he was not the author of the post. The court ruled that because he knew of the post and “allowed his name to be coupled” with the author, he was as liable as the author.
This case began when a couple underwent an acrimonious divorce. After the divorce was finalised, the ex-husband’s new partner posted defamatory remarks on Facebook concerning the ex-wife and tagged the ex-husband in these posts. The court found that the ex-husband was guilty of defamation because he had not taken down the post. This judgment places a positive obligation on social media users to monitor the content of their social media accounts and to take positive steps to remove any objectionable material.
The five elements of defamation in South African law are:
- the wrongful and
- intentional
- publication of
- a defamatory statement
- concerning the plaintiff.Publication may take the form of a positive act or, as was the situation in this case, a failure to act.
If you have a social media page or profile you should be aware that:
- At common law in South Africa, a failure to speak up or to make all relevant facts known that results in a half-truth being propagated is sufficient to show that publication has taken place.
The reasoning in Isparta, although not explicit, seems to rely on this common law principle.
- You are responsible for the content on your pages
The fact that comments are made by third parties may not assist in your defence.
- You should regularly monitor your pages
Facebook has a setting that allows users to approve posts before they appear on a profile or page.
- Respond to complaints
If you receive a complaint or a request to remove offending content or such content appears on your pages you should remove it immediately.The above applies not only to defamatory content, but to any other form of objectionable speech, such as hate speech.
