Over the past two years, we have witnessed a global backlash against gender-based violence that has garnered a significant public following. It is difficult not to get involved in such an emotive concern but even more so given the rising social pressure to either show your support against it or risk being held accountable. Recent tragic events have sparked the controversial public “naming and shaming” movement by and on behalf of victims of abuse. The “naming and shaming” campaign traversed several platforms ranging from anonymous posts on social media to public verbal announcements, resulting in complex and far-reaching legal implications, especially in the domain of defamation and crimen injuria.
The right to dignity and freedom of expression are both entrenched in the South African Constitution, but one would do well to remember that Section 36 of our Constitution recognises the reasonable and justifiable limitation of rights and that these rights are therefore not absolute. It is therefore important to seek legal advice to ensure that victims of abuse are able to enforce their rights without causing unintended consequences for themselves.
Publishing defamatory material can be far-reaching and could result in a costly civil suit or end up in the criminal court. If the defamatory material is classified as hate speech, it could also end up in the equality court as demonstrated by the Penny Sparrow case. It is important to note that this extends not only to the party who initially made the defamatory statement but to anyone who perpetuates the defamatory material further.
In the context of social media, perpetuating defamatory material does not require an unambiguous verbal or written statement in support of such material. It also includes much more subtle acts and omissions, such as Sharing, Liking and Retweets, or failing to delete content from an account under your control or Unfollowing a group or person disseminating defamatory statements.
Defamation is the unlawful intentional publication of a matter concerning another which has the tendency to undermine his or her status, good name or reputation. To succeed with a claim of defamation, it would be necessary to show that the statement or material: is published, made intentionally, is wrongful, concerns another, and is defamatory i.e. it harms another’s reputation, decreases the respect, regard or confidence in which a person is held, or induces disparaging, hostile or disagreeable opinions or feelings against him or her.
Publication is any forum such as speech, print and online, newsgroups/bulletins where the information will be or is made known to at least one other person.
A defamatory statement is not wrongful if it can be shown that: the statement is true and in the public interest or benefit, constitutes fair comment or is reasonable in the specific context that it was made, if it was made in a privileged occasion, or that the person concerned consented to the statement being made. A defamatory statement could also have been made unintentionally if it was made, for example, by mistake or in jest (within reason of course).
Hate speech is any speech, gesture, conduct, writing, or display, which may incite violence or prejudicial action against a protected individual or group, or disparages or intimidates a protected individual or group.
Crimen injuria is a crime defined as the act of unlawfully and intentionally impairing the dignity or privacy of another.
A civil action for defamation may result in a court order requiring that the defamatory statement/s be removed and prohibiting all future re-publication of these statements, the offender may be ordered to make a public apology, and he/she could be ordered to pay damages (monetary compensation) to the defamed party for the harm caused. Failing to abide by such a court order could result in a contempt of court order.
A person found guilty of crimen injuria will, once convicted, have a criminal record. A first-time offender could be sentenced to a fine and a suspended sentence for a specified period, subject to the offender not re-offending. Re-offending, or contempt of a court order, may result in imprisonment.
It is noteworthy that the defamed person need not choose between either civil or criminal action but may initiate both against the perpetrator.
PAUSE BEFORE YOU POST:
- Be sure that what you are posting on social media or online can be backed up with substantiating evidence and factual information. Once posted, track your content to ensure that what you have published is not misconstrued, changed or linked to content that you cannot back up.
- Before you express your support for existing online content, make sure you understand precisely what the content comprises. Reading the by-line or latest commentary surrounding such content can be misleading, and failing to make the effort to ensure that you fully understand what it is you are supporting is irresponsible and no excuse for perpetuating offensive defamatory material.
- Do not post or perpetuate anything that could provoke others to cause harm based on gender, ethnic background, religion, race, sexual preference or otherwise.
- Regularly check your online activities to ensure that you have not been linked to pages or posts that contain defamatory or harmful statements.
- Remember: making a comment that is true but not in the public interest could still be defamatory.
Removing defamatory content from websites/blogs hosted in South Africa:
The Internet Service Providers Association (ISPA) offers a mechanism, known as a “take-down notice” which enables persons to report unlawful and/or defamatory content and, if possible, to have same removed from websites hosted in South Africa.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).