Personal Injury Law

 Facebook fight 2

Simply to say that the allegation you make is the truth is NOT Enough.

In a defamation action between two parties where the one (A) has defamed the other (B); the defending party (A) can raise the defence of TRUTH ie “what I said was the truth.”

This does NOT necessarily apply to social media defamation.

 Let us take an example:

Perhaps you are engaged in a bitter dispute. Perhaps it’s a fight over money, a business venture gone awry, a family feud, or a messy divorce, a disaffected employee, or perhaps a vengeful neighbour.

 You decide to resort to Social Media “to tell the truth” about your nemesis. You feel totally safe doing so – after all, our Constitution protects our rights to free speech, the Internet is a bastion of Freedom of Information, nothing said online is “real”, and anyway who can object to you telling the truth? Wrong!

 A recent High Court judgment fires yet another strong warning shot across the bows of would-be Social Media defamers, confirming that:

  1. Online defamation is as unlawful as its real-world counterpart, in any other medium; and
  2. To defend yourself from a claim for defamation you must prove more than just that you are telling the truth.

 The facts of the case were briefly as follows:

 Sometimes after a prestigious polo event had taken place; accusations of cheating were made by one party against another:

A marketer (A) and an event’s organiser (B) were locked in a dispute over payment for the previous unrelated event.

When the organiser began work on another event, a high-profile and prestigious polo gathering, the marketer created a Facebook page in its name.

She (A) then posted statements on the page in which she warned business owners and job seekers not to do business with the organiser (B). She also accused the organiser (B) of having ‘screwed’ (cheated) many people out of thousands of Rands. She (A) advised people to hold onto their money and sanity and rather not get involved with the organiser (B).

Threatened by the organiser’s (B’s) attorneys with an interdict application and a charge of crimen injuria (criminal impairment of another’s dignity), the marketer’s (A’s) response was an offer to remove the posts, but only if she (A) was paid the monies she claimed.

Whereupon the organiser (B) approached the High Court for assistance. The Court interdicted the marketer (A) from “unlawfully interfering with the applicant’s business” and from “unlawfully casting aspersions on the applicant’s character, personality and business reputation.” To rub salt into her wounds, the marketer (A) was ordered to pay all the organiser’s (B’s) legal costs.

The marketer (A) had, held the Court, failed to prove (at least on the papers before the Court as no actual evidence was led as it was a Court Application) the truth of her (A’s) allegations that the organiser (B) had “screwed” (in the sense of cheated) hundreds of people. In any event said the Court, her “defiant written response seems to me (the judge) to make it clear that her ( A’s)attack on the applicant (B) was aimed at ensuring payment of what she claimed was owing to her and had nothing to do with the public interest or fair comment”.

There was, so the Court held, “no justification for publishing these statements. Even if they were true, it is difficult to see how they could have been in the public interest or fair comment in the context of the law of defamation.”

 “Truth and Public Interest”

 This is an important distinction made by the High Court; because “Truth and Public Interest” is a common defence to defamation claims ordinarily, but it is also widely misunderstood.

As the Court pointed out: “People need to be aware that the publication of a defamatory statement concerning another person on social media is not excused by the fact that the statement is true. It also has to be in the public interest, which is not the same as being interesting to the public…” (our emphasis).

What exactly a court will consider being sufficiently “in the public interest” will depend on the facts of each case, so take specific legal advice in doubt.

The bottom line – think twice before you post anything online!

 Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. with your legal questions.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practising attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

 

 

 

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