social media

Social Media and the Law

Defamation

Social media platforms such as Facebook, Twitter and YouTube have become an integral part of our everyday lives and have an important role to play in our social environment and help us keep in touch with others and stay informed of events around the world. Yet despite many of the benefits of social media platforms, these platforms also create opportunity for abuse and often bring out the worst in people, often without thought as to the consequences of their action.

Many people lose sight of the fact that the moment something is posted on social media sites, it is considered “published” and is therefore subject to the laws applicable to traditional media, such as newspapers. Accordingly, claims for defamation and hate speech as well as dismissal or disciplinary action for social media misconduct become very real possibilities.

Defamation

Defamation can be defined as the wrongful, intentional publication of words or behaviour in relation to another person which has the effect of injuring his status, good name or reputation.

Our courts have recently set a new legal precedent after it granted a Facebook user an interdict preventing a friend from posting about his personal life on the platform after she defamed him thereon.

In another case a woman was awarded R40,000 in damages after claiming that her former husband and his new wife were bad-mouthing her on Facebook. The judge found that although the former husband was not the author of the postings, he was tagged in and knew about them and allowed his name to be coupled with that of his new wife thus creating liability jointly with the author of the postings.

Hate Speech

Hate speech is any speech, gesture or conduct, writing, or display which is prohibited because it may incite violence or prejudicial action against a protected individual or group, or because it disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by disability, ethnicity, gender, nationality, religion, race, sexual orientation, or other characteristic.

Although freedom of expression is a constitutional right, it is not an absolute right. If what you say, or publish via social media platforms, has a negative impact on the rights of another, then your right to freedom of expression may be limited.

Dismissal

Disciplinary action, including dismissal for social media conduct have increased drastically over the past few years often following on the heel of comments made or posted on social media sites by employees. The Commission for Conciliation, Mediation and Arbitration (CCMA) have dealt with several of these cases where the dismissal was found to be fair based on the evidence garnered from the social media sites.

Some of the grounds for dismissals have included derogatory Facebook status updates, an employee criticising management, criticising the employer, employees using social media to convey internal matters of the business to former employees, etc.

Take note

What should you take note of when using social media to avoid legal or disciplinary action arising from your conduct on these social platforms?

The most common defence against defamation is that the publication was true and in the public interest. Make sure about your facts before posting anything and ensure that you can back your comments with substantiating evidence and factual information. Accordingly, making a comment about a friend on a matter that is not in public interest could be defamatory even if it is true.
Regularly check your social media profiles to ensure that your name is not being linked to defamatory statements of others.
Do not post anything which could be regarded as incitement to cause harm based on race, religion, ethnic background, gender, sexual preference etc.
Adhere to the social media strategy and policies of your workplace. Find out what these are, and if these are not in place, keep the following guidelines in mind:
Keep posts legal, ethical and respectful.
Do not engage in online activities which could harm the reputation of the company.
Do not disclose any confidential or business information of the company.
Do not discuss colleagues, managers or information pertaining to the company.
A good rule of thumb is to ask yourself whether you would be willing to say something out loud in a room full of people or colleagues. If the answer is no, then you shouldn’t consider posting it on social media.

workplace defamation

Workplace defamation:

Defamation

You are a supervisor managing a number of staff. The business is upon hard times and this stress spills over into the workplace where staff tempers are short. One day a heated argument between employees arise. When you try and calm them down, the one employee verbally attacks and abuses you, calling you unintelligent and a liar and hurls derogatory slurs at you to embarass you in front of the other staff. You feel belittled and reluctant to face your staff because you feel your character has been undermined by the employee’s conduct. Can you sue this employee for defamation of your character?

No one can argue that a work environment can often be a stressful place where tempers can flare and harsh words can be uttered. But does this justify conduct which affects the reputation of a person and if not, can damages be claimed for such defamation of one’s character and loss of reputation?

In answering this question the recent case of N Van der Westhuizen v M M Ntshabele can be looked at. In this matter the plaintiff was the human resource manager and the defendant an employee that was retrenched. Upon requesting the defendant to sign the required retrenchment documents and hand over company assets the defendant insulted the plaintiff, calling the plaintiff amongst other things unintelligent and a liar, as well as uttering racial remarks. This all took place in an open plan office space in front of the plaintiff’s colleagues and members of the public. The plaintiff was so embarrassed that she went to the privacy of the boardroom and burst into tears feeling humiliated. In considering the plaintiff’s claim for damages due to defamation the court took note of the following: the plaintiff was a human resources manager which required a relationship of trust with her fellow employees; the defendant’s conduct in calling her a liar and making racial remarks would have the outcome that such a trust relationship would cease to exist and would affect the plaintiff’s ability to perform her duties; there had also been no remorse on the side of the defendant who had not offered an apology for his conduct. Accordingly, the court ordered damages of R50,000.00 for defamation to be paid to the plaintiff.

When suing for defamation the plaintiff must establish a wrongful and intentional publication of a defamatory statement concerning the particular person. A statement is defamatory if it is likely to injure the good esteem of a person and includes not only statements that expose a person to hatred, contempt or ridicule, but also statements that are likely to humiliate or belittle the person; and if it tends to make him or her look foolish, ridiculous or absurd or renders the person less worthy of respect by his or her co-workers and subordinates. To establish this, our courts apply a two-stage inquiry: the first is to establish the natural or ordinary meaning of the statement, and the second is whether that meaning is defamatory.

In the first stage the criterion is what meaning the reasonable person of ordinary intelligence would attribute to the statement. At the second stage of the inquiry, our courts accept that a statement is defamatory of a person if it is likely to injure the good esteem in which he or she is held by the reasonable or average person to whom it had been published.

The amount of damages to be awarded for defamation falls within the court’s discretion and the courts will usually consider awards made in other cases as guidance. The seriousness and falseness of the defamatory statements also play a determining factor in the amount of damages that can be awarded, together with the presence or absence of apologetic behaviour.

In respect of the amount of damages that may be awarded, it is important to note that to sue for defamation is not a road to riches but a method to restore a person’s reputation. As such the seriousness of the statements, whether they were intentional and wrongful, whether the statements affected one’s ability to perform his work duties, whether they would negatively affect a bystander’s view of yourself, are all factors our courts will consider in evaluating the presence of defamation and the quantum of any damages that may be awarded. To help evaluate the merits of your situation it is important that you consult with an attorney and assess the possibility of a successful claim for defamation and damages.