Facebook defamation is not necessarily illegal

That the respondent in the latest High Court Facebook defamation case, M v B, was ordered to remove defamatory posts on Facebook isn’t remarkable. What is more interesting about that case is that it reiterates a principle that a court will not step in and proactively block future defamatory posts.

The applicant in this case, M (SAFLII redacts personal information about parties in cases it publishes in certain circumstances), brought an urgent application to the Kwa-Zulu Natal High Court on 9 September 2013 to order his ex-wife, B, to –

  1. “remove all messages as contained in annexure ‘D’ to the applicant’s founding affidavit, from her Facebook page;”
  2. “refrain from posting any defamatory statements about the applicant on her Facebook page;” and
  3. “refrain from in any way making, publishing and/or distributing defamatory statements about the applicant.”

The urgent application was successful and M was granted an interim order which M subsequently sought to have made final. Judge Chetty’s judgment on this was delivered just over a year after the initial application was launched, on 19 September 2014.

Background

Judge Chetty gave the following background to the applications:

[3] It is necessary to sketch the brief history of the matter, and particularly the facts giving rise to the launching of the application. The applicant and the respondent are the biological parents of a minor child, a daughter P born in July 2008. At the time of the launching of the application, the child was five years old. The respondent and the applicant were never married, and at the time of the institution of these proceedings, were no longer in a relationship. P lives with the respondent. In terms of an arrangement between the parties, the applicant has contact with his child every alternate weekend from Friday afternoon until Sunday afternoon. It is not disputed that in accordance with this agreement, the applicant picked up his daughter on the weekend commencing 30 August 2013 and returned her to the respondent on Sunday 1 September 2013.

[4] During the course of this particular weekend the applicant and his daughter visited the house of a friend, and ended up staying over. During the course of the evening, other friends gathered at the house eventually resulting in P sharing a bed with an adult female, who is a pre-primary school teacher, and someone known to her as she had babysat P on previous occasions. The applicant has categorically stated that he has never had a romantic relationship with the teacher concerned. P was safely returned to her mother on the Sunday.

[5] In the week that followed, the applicant received calls from several friends drawing his attention to a posting by the respondent on Facebook, under the heading “DEBATE”. The posting reads as follows:

‘DEBATE: your ex has your daughter (5) for the weekend and is sleeping at a mates house. They all (about six adults) go jolling and your ex’s drunk, 50 yr old girl “friend” ends up sleeping with your daughter cause he doesn’t want his girl “friend” sleeping in a single bed she can share the double bed with his/your daughter! How would you feel?’

[6] It is not in dispute that at the time of this posting the respondent had 592 “Facebook friends”. A number of the respondent’s ‘friends’ responded to her posting and were critical of the behaviour of the applicant. The respondent further contributed towards the debate by making subsequent postings to that set out above. These postings or messages appear as annexure ‘A’ to the applicant’s founding papers. The initial postings resulted in a further debate with the respondent’s brother S[…] B[…], who questioned the aspersions cast by the respondent on the applicant and the teacher with whom P shared a bed. These postings appear as annexure ‘B’ to the applicant’s founding papers.

[7] In light of the postings, which the applicant regarded as defamatory and detrimental to his business reputation, he engaged his attorneys who wrote to the respondent on 4 September 2013 clarifying that during the weekend in which the applicant had access to P, at no time therein was she placed in any danger, nor was her safety compromised in any way. His attorneys then called upon the respondent to remove the offending postings (annexures ‘A’ and ‘B ‘to the founding papers) from her Facebook page by the close of business on 4 September 2013, failing which they threatened litigation.

[8] According to the respondent, she removed the offending postings by 5 September 2013. Accordingly, at the time when the application came before my colleague Nkosi J, the respondent contended in her opposing affidavit that there was no need for the application as she had long since complied with the demand and removed the postings. In support of the submission, the respondent attached an SMS received from the applicant on 5 September 2013 stating:

‘And well done on removing your false Facebook posting – you’ve saved yourself from a lawsuit. Ensure no further defamatory posts are put up or you’ll find yourself in Court!!’

[9] As is evident from the prayers sought in the Notice of Motion, notwithstanding the removal of postings in the form of annexures A and B, the applicant persisted in his application for urgent relief on the basis that the respondent had failed to take down the postings on what is referred to as her Facebook Wall, which the applicant contends “retained a partisan version of the debate”. The postings on the respondent Face Wall appeared as annexure D to the applicant’s founding affidavit. The applicant contended that the contents of annexure ‘D’ defamed him, even though the respondent has deleted the earlier postings on her Facebook page. In order to understand the applicant’s complaint, a perusal of the respondent’s Facebook Wall reflects the contents of active debate taking place between the respondent and her friends. The subject of the debate continues to be the incident relating to the applicant’s care (or neglect) of his daughter over the weekend at the end of August 2013. In particular, the opening message on the applicant’s Facebook Wall is the following:

‘This is my FB page which I can get opinions on matters close to my heart, if you don’t like it then go read someone else’s and defriend me!’

[10] This message was posted in response to earlier messages from the respondent’s brother, S[…] B[…], who it would appear, did not take kindly to the insinuations of neglect aimed at the applicant.

The Court’s decision

These facts are pretty similar to two 2013 Facebook defamation case which I wrote about, H v W and Isparta v Richter and Another. The order directing B to remove defamatory posts from her Facebook Wall was not particularly controversial. There was some discussion about the timing of the application and B’s efforts to remove some defamatory posts but this order was in line with Judge Willis’ judgment in H v W and Acting Judge Hiemstra in Isparta v Richter and Another. After considering arguments from both sides, Judge Chetty found against B:

[20] Other than a denial that the postings were defamatory, the respondent does not make out any argument of the public interest in respect of the statements attributed to the applicant. I am satisfied that the applicant was entitled to approach the Court on an urgent basis at the time that he did. I am accordingly satisfied that the applicant has made out a case for first part of the rule nisi, in terms of the relief sought in prayer 2.1 of the Notice of Motion, to be confirmed.

Facebook_defamation

The Court then moved on to the second part of the matter, namely whether M should be entitled to a final order, essentially, prohibiting B from publishing defamatory comments about M in the future. This may seem like a perfectly reasonable order but it is important to bear in mind that just because a comment is defamatory, doesn’t mean that it is wrongful. As Judge Chetty pointed out –

[24] On the other hand, the respondent submitted that there is no basis at common law for a Court to curtail the respondent in respect of material which is not as yet known to the Court, nor has it been presented or published. As such the Court is asked to speculate on what could constitute a defamatory statement, uttered or published by the respondent against the applicant. It was correctly submitted in my view that even if the statement in the future by the respondent is defamatory of the applicant, it is equally so that not every defamatory statement is per se actionable in that the respondent may have a good defence to its publication. For example, the respondent might be under a legal duty to furnish information about the applicant in connection with an investigation of a crime, or she could be a member of a public body which places on her a social duty to make defamatory statements about the applicant. To this extent, the respondent may make defamatory statements about the applicant in circumstances where they may be a qualified privilege. Obviously it would be necessary to ascertain the nature of the occasion in order to determine whether any privilege attaches to it. The difficulty in granting such an order is evident, albeit in the context of the publication of an article, from the judgement in Roberts v The Critic Ltd & others 1919 WLD 26 at 30–31 where the Court held:

‘I think I have jurisdiction to make an order restraining the publication of a specific statement that is defamatory, but in the present case I am asked to restrain the publication of an article in so far as it is defamatory; if the applicant’s contention is correct this will come to the same thing as restraining any continuation of the article at all, because that contention is that no continuation of the article can be written that is not defamatory… . There is the grave difficulty in the way of granting an interdict restraining the publication of an article which purports to deal with a matter of great public interest, and which I have not before me. It is impossible to say what it will contain, however grave one’s suspicions may be. The respondents specifically state that the continuation will not be libellous, nor will it slander the petitioner; nor will it affect her good name and fair fame. It can only be determined upon the publication of the article if this statement be true. I think it is impossible for me to deal with it now. In the cases I have referred to the defendants insisted on the right to publish the statements complained of. The interdict must therefore be discharged.’

[25] At the same time it has also been held that it is lawful to publish a defamatory statement which is fair comment on facts that are true and in matters of public interest, as well as in circumstances where it is reasonably necessary for and relevant to the defence of one’s character or reputation. Counsel relied on the judgement of Willis J in H v W (supra) para 40 in support of his submission that Courts should not be eager to prohibit or restrict parties in respect of future conduct, of which one can only speculate in the present. The Court held that:

‘Although judges learn to be adept at reading tealeaves, they are seldom good at gazing meaningfully into crystal balls. For this reason, I shall not go so far as “interdicting and restraining the respondent from posting any information pertaining to the applicant on Facebook or any other social media”. I have no way of knowing for certain that there will be no circumstances in the future that may justify publication about the applicant.’

Although judges probably wouldn’t have a difficulty ordering a person not to do something that is clearly and unjustifiably wrongful in the future (that is largely what an interdict is for), the challenge M faced with this part of his application is that a future defamatory statement could well be justifiable and not wrongful. As I pointed out in my post, Judge Willis considered a couple justifications in H v W –

After exploring Twitter briefly, Judge Willis turned to established case law in South Africa including authority for the proposition Roos expressed that a privacy infringement can be justified in a similar way that defamation can be justified and a more recent Supreme Court of Appeal judgment in the 2004 Mthembi-Mahanyele v Mail & Guardian case which, according to Judge Willis –

affirmed the principle that the test for determining whether the words in respect of which there is a
complaint have a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned

The Court, in the Mthembi-Mahanyele case set out the test for defamation as follows (and cited a 1993 case in the then-Appellate Division of Argus Printing and Publishing Co Ltd v Esselen’s Estate) –

The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words … to convey a meaning defamatory of the plaintiff… . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’

Referencing one of the justifications for (or defences to) defamation, namely that the defamatory material be true and to the public benefit or in the public interest, Judge Willis drew an important distinction that is worth bearing in mind –

A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The courts do not pander to prurience.

The Court moved on to explore another justification, fair comment. In order to qualify as “fair comment” –

the comment “must be based on facts expressly stated or clearly indicated and admitted or proved to be true”

The person relying on this justification must prove that the comment is, indeed, fair comment and “malice or improper motive” will defeat this justification or defence, regardless of its demonstrably factual nature. In this particular case, the Court found that W acted maliciously and she was unable to prevail with this defence.

Because defamation can be justified in appropriate circumstances and because judges can’t predict when defamatory statements will be justifiable in a particular context, proactively blocking defamatory Facebook posts is inherently problematic. Judge Chetty summarised the point:

As set out earlier this argument must fail because it is clear that not every defamatory statement made by the respondent about the applicant would be actionable.

What you should not share online

​The social Web encourages sharing but sometimes we share too much. This post gives you an idea of what to look out for and, perhaps, what not to share.

I received an email from Nadya, a Canadian student, who is researching how people express themselves online and she posed a few questions which I answered in a recording. This is related to my previous post titled “What you can legally say on Twitter” which I published in the aftermath of the Oscar Pistorius tweetstorm. I go a little further than defamation and also talk a little about privacy concerns and content sharing. The important thing to bear in mind is that just because you are using the social Web to express yourself, it doesn’t mean that what you say and share won’t have very real consequences for you and people close to you.

Defamation law’s chilling effects on social media

If you look to recent cases, you generally see this issue arising in the context of politicians and sports personalities whose indiscretions are published online (usually Twitter) and disseminated rapidly. Embarrassed plaintiffs and applicants approach courts, indignant, and seek to silence the debates and expressions of schadenfreude. The courts, applying the law as they understand it to this new medium, grant orders which sometimes just seem to be out of touch with new realities. What concerns me about these cases is that simply applying these legal principles to this new, unprecedented landscape can, and often does, have a chilling effect on freedom of expression. 

Jamie's 3rd birthday party photos-24

Quirk invited me to listen to and watch Emma Sadleir speak about social media and the law last Friday. She took the Quirk team and a few guests (which included me) through South African law on defamation and how it related to social media. For the most part she dealt with fundamentals in our law and, at one point, she pointed out that, in her view, retweeting a defamatory tweet exposed the re-tweeter to a defamation claim alongside the original poster.

@emmasadleir “anyone can be sued in ‘chain of publication’”… “but there is a ‘innocence of dissemination’ defence” #UoQJozi

— justinspratt (@justinspratt) March 1, 2013

I don’t necessarily agree with Emma’s views but I agree that a court will likely see retweets as endorsements and will hold re-tweeters (and equivalent users on other platforms) liable for defamation because they clicked a button and shared a defamatory update with their followers or connections.

While I can understand the argument and agree there is merit to it, as well as the challenge that retweeting and similar sharing online potentially and exponentially aggravates the initial defamation, I don’t necessarily agree that it should be actionable on this scale.

If you look to recent cases, you generally see this issue arising in the context of politicians and sports personalities whose indiscretions are published online (usually Twitter) and disseminated rapidly. Embarrassed plaintiffs and applicants approach courts, indignant, and seek to silence the debates and expressions of schadenfreude. The courts, applying the law as they understand it to this new medium, grant orders which sometimes just seem to be out of touch with new realities. What concerns me about these cases is that simply applying these legal principles to this new, unprecedented landscape can, and often does, have a chilling effect on freedom of expression.

The social Web is an unparalleled platform for expression (both desirable and undesirable). It is absolutely used for undesirable purposes that include unjustifiably harming reputations, economically harming content creators by exploiting their work without their permission and harming systems around the world. At the same time, it is a powerful platform for previously disenfranchised voices which include protestors fighting oppressive regimes and consumers speaking out against irresponsible brands.

Applying conventional defamation law to these scenarios without developing a more nuanced and robust model of what should be protected free expression could have the effect of stunting what could otherwise be a radically transformative shift in our collective culture towards a more transparent and empowered society. A quote from the 1925 US Supreme Court case of Whitney vs California seems appropriate:

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

What you can legally say on Twitter

When it comes to acceptable conduct on Twitter and, defamation in particular, our law will govern how South African Twitter users use Twitter and may well inform how Twitter responds to improper use of its service too. Although simply making defamatory statements is not immediately actionable, doing so unjustifiably likely is wrongful and can expose you to legal proceedings seeking to stop you, to remove your defamatory statements or even to claim financial compensation from you. That said, there would be a tension between Twitter’s approach to users’ freedom of expression and local judicial authorities’ approach which could be interesting but, on the whole, Twitter will likely respect local laws which are aligned, at least ostensibly, with its values.

Nokia Lumia launch-72

The Oscar Pistorius case has clearly illustrated just how important Twitter has become to us as an information service and as a form of expression for individuals. It exists both in the real world and in a sort of altered reality for many of its users. The result is that people often find themselves tweeting things they wouldn’t say in person and may of those things can be defamatory and actionable in our law. An important question is what you, as a Twitter user (or as a person using most publish social services, generally) can say (and, by implication, what you shouldn’t)?

What Does Twitter Permit?

Twitter’s terms and conditions comprise its Terms of Service and the Twitter Rules. Between them, these two frameworks establish a set of rules and guidelines for acceptable Twitter use[1].

Twitter’s Terms of Service

Twitter’s Terms of Service are the contract between you and Twitter. This is how Twitter introduces this contract:

These Terms of Service (“Terms”) govern your access to and use of the services, including our various websites, SMS, APIs, email notifications, applications, buttons, and widgets, (the “Services” or “Twitter”), and any information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services (collectively referred to as “Content”). Your access to and use of the Services are conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms.

This means that the Terms of Service are the primary legal framework as far as you and Twitter are concerned. When you violate the Terms of Service you may not be breaking the law but you are breaking your contract with Twitter and can lose your profile and further access to the service. As the saying goes, “easy come, easy go” and Twitter can terminate your access to the service if you violate the Terms of Service. The section titled “Ending These Terms” includes the following:

The Terms will continue to apply until terminated by either you or Twitter as follows.

You may end your legal agreement with Twitter at any time for any reason by deactivating your accounts and discontinuing your use of the Services. You do not need to specifically inform Twitter when you stop using the Services. If you stop using the Services without deactivating your accounts, your accounts may be deactivated due to prolonged inactivity under our Inactive Account Policy.

We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms or the Twitter Rules, (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Services to you is no longer commercially viable. We will make reasonable efforts to notify you by the email address associated with your account or the next time you attempt to access your account.

Twitter is also the gatekeeper when it comes to your Twitter use and can decide how and when you may use the service and in what manner:

Please review the Twitter Rules (which are part of these Terms) to better understand what is prohibited on the Service. We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services, to suspend or terminate users, and to reclaim usernames without liability to you. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Twitter, its users and the public.

Twitter Rules

So you can be sued for defamation of character for things said on Twitter. That’s assuming the person you defame has any character.

— Jonathan Witt (@Jonathan_Witt) February 23, 2013

The Terms of Service specify technical restrictions for how you may make use of the service but the Twitter Rules specifically address your conduct on Twitter and what is permissible. Interestingly, Twitter doesn’t address defamation directly in the Twitter Rules. Instead, it prohibits the following broad categories of activities on Twitter:

  • Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others
  • Trademark: We reserve the right to reclaim user names on behalf of businesses or individuals that hold legal claim or trademark on those user names. Accounts using business names and/or logos to mislead others will be permanently suspended.
  • Privacy: You may not publish or post other people’s private and confidential information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission.
  • Violence and Threats: You may not publish or post direct, specific threats of violence against others.
  • Copyright: We will respond to clear and complete notices of alleged copyright infringement. Our copyright procedures are set forth in the Terms of Service.
  • Unlawful Use: You may not use our service for any unlawful purposes or in furtherance of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content.
  • Misuse of Twitter Badges: You may not use a Verified Account badge or Promoted Products badge unless it is provided by Twitter. Accounts using these badges as part of profile photos, header photos, background images, or in a way that falsely implies affiliation with Twitter will be suspended.

In addition, anyone who uses Twitter for the following purposes will be subject to “permanent suspension”:

  • Serial Accounts
  • Username Squatting (also known as Brandsquatting)
  • Invitation spam
  • Selling user names
  • Malware/Phishing
  • Spam
  • Pornography

Twitter protects users’ rights to freedom of expression, for the most part, although these protections are limited in some instances and have become somewhat eroded through steps taken to censor Twitter users, sometimes controversially. When it comes to freedom of expression, Twitter protects aspects of this freedom such as parody, commentary and fan accounts but has little tolerance for, and has developed specific policies catering for, misuses that include impersonations falling outside the scope of parody, commentary and fan accounts and abusive behaviour (which is not very clearly defined).

What Does the Law Permit?

@songezozibi#blacktwitter watched Carte Blanche and discovered that defamation laws cover social media. It’s hilarious.

— Sipho Hlongwane (@comradesipho) February 24, 2013

Defamation in South Africa has developed quite a bit in the last decade or so. That’s not to say that it has changed radically but how it is applied has. For one thing, the Bill of Right’s introduction (first in the interim Constitution in 1994 and, later, in the final Constitution in 1996) led judges to base their decisions on an analysis of the relative weight of various rights which usually include the right to dignity and the right to freedom of expression.

I referenced current judicial authorities on defamation which Judge Willis discussed in his recent judgment about a case involving defamation on Facebook in my article about that case and this extract is worth repeating:

After exploring Twitter briefly, Judge Willis turned to established case law in South Africa including authority for the proposition Roos expressed that a privacy infringement can be justified in a similar way that defamation can be justified and a more recent Supreme Court of Appeal judgment in the 2004 Mthembi-Mahanyele v Mail & Guardian case which, according to Judge Willis –

affirmed the principle that the test for determining whether the words in respect of which there is a
complaint have a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned

The Court, in the Mthembi-Mahanyele case set out the test for defamation as follows (and cited a 1993 case in the then-Appellate Division of Argus Printing and Publishing Co Ltd v Esselen’s Estate) –

The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words . . . to convey a meaning defamatory of the plaintiff. . . . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’

Referencing one of the justifications for (or defences to) defamation, namely that the defamatory material be true and to the public benefit or in the public interest, Judge Willis drew an important distinction that is worth bearing in mind –

A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The courts do not pander to prurience.

The Court moved on to explore another justification, fair comment. In order to qualify as “fair comment” –

the comment “must be based on facts expressly stated or clearly indicated and admitted or proved to be true”

The person relying on this justification must prove that the comment is, indeed, fair comment and “malice or improper motive” will defeat this justification or defence, regardless of its demonstrably factual nature. In this particular case, the Court found that W acted maliciously and she was unable to prevail with this defence.

When it comes to acceptable conduct on Twitter and, defamation in particular, our law will govern how South African Twitter users use Twitter and may well inform how Twitter responds to improper use of its service too. Although simply making defamatory statements is not immediately actionable, doing so unjustifiably likely is wrongful and can expose you to legal proceedings seeking to stop you, to remove your defamatory statements or even to claim financial compensation from you. That said, there would be a tension between Twitter’s approach to users’ freedom of expression and local judicial authorities’ approach which could be interesting but, on the whole, Twitter will likely respect local laws which are aligned, at least ostensibly, with its values.

The Other Considerations

Leaving aside the law and your contract with Twitter, online defamation is tricky. Your legal rights and rights under a provider’s terms of service may protect you in theory but the social Web has its own dynamics which operate, frequently regardless of what should happen. It is very easy to tweet something that you may feel strongly about in that moment (I have certainly done that) and it is worth bearing Judge Willis’ advice in mind for those times when your tweets perhaps go too far:

Those who make postings about others on the social media would be well advised to remove such postings immediately upon the request of an offended party. It will seldom be worth contesting one’s obligation to do so. After all, the social media is about building friendships around the world, rather than offending fellow human beings. Affirming bonds of affinity is what being ‘social’ is all about.

  1. Other services have similar frameworks (take a look at Facebook’s Statement of Rights and Responsibilities and Community Standards guidelines as well as WordPress’ Terms of Service for hosted service users)  ↩

Your Oscar Pistorius conjecture could get you sued

In all likelihood, most of the conjecture about Pistorius’ guilt is defamatory and the question is whether those defamatory statements are justifiable and that remains to be seen. If you are engaged in a debate about the case, it may be prudent for you to be measured in your statements and avoid potentially prejudicial declarations.

The Oscar Pistorius case has enthralled South Africans who are torn between supporting their hero and their disappointment at seemingly being let down by a South African icon. The discussion has practically overwhelmed my Twitter stream and people have expressed opinions on Pistorius’ guilt and innocence well before a court has reached any conclusions of its own.

#OscarPistorius Today’s lesson: Don’t rush to conclusions. Wait for both sides. Examine everything.

— Alex Eliseev (@alexeliseev) February 20, 2013

While our Bill of rights gives us the right to express our opinions, our rights are not absolute and, in the context of defamation, the defamed person’s right to dignity often holds sway unless there are clear public policy reasons to allow the comments to stand. In this tragic case, Pistorius stands accused of murder but he hasn’t been found guilty. He is still, in our law at least, innocent. We don’t handle criminal law and leave the analysis of the criminal legal issues to the likes of David Dadic who is doing a far better job explaining some of the legal technicalities. That said, drawing conclusions about Pistorius’ guilt and publishing those conclusions online can lead to a defamation claim down the line.

In all likelihood, most of the conjecture about Pistorius’ guilt is defamatory and the question is whether those defamatory statements are justifiable and that remains to be seen. If you are engaged in a debate about the case, it may be prudent for you to be measured in your statements and avoid potentially prejudicial declarations. As William Booth, a criminal law attorney commented today for East Coast Radio

“I can understand there [are] people that are expressing horror at what happened, there are also people who are supporting Mr. Pistorius and saying he should be released on bail,” he said.

“So everything, I feel, should be said and done in a proper and objective manner, and not that one gets carried away and say things that you may actually regret later.

“Too much has been said that has no factual basis.”

Johannesburg High Court rules on Facebook defamation

The innocuous looking case of H v W which was handed down in the South Gauteng High Court on 30 January 2013 is anything but. Judge Willis’ 30 page judgment recognises the harm a Facebook post can do to a person’s reputation and throws the weight of the Court behind the person defamed (and who can afford the legal fees).

Update: Here are a few thoughts which are partly a summary and partly what I think is really interesting about this case. Be sure to read the post itself, though, there is a lot to unpack in this case.

Back to Wits with Aaron and Ashley-19

The innocuous looking case of H v W which was handed down in the South Gauteng High Court on 30 January 2013 is anything but. Judge Willis’ 30 page judgment recognises the harm a Facebook post can do to a person’s reputation and throws the weight of the Court behind the person defamed (and who can afford the legal fees).

What the judgment says

Background

Judge Willis’ judgment begins with some background information (the names of the parties were redacted to prevent further harm). W (the “respondent”) published an open letter to H (the “applicant”) on Facebook “for public consumption” which included the following paragraph:

I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified. Remember I see the broken hearted faces of your girls every day. Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to take responsibility for the
consequences of your own behaviour? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, do you still see a man?

Judge Willis continues and explains that –

The applicant is an insurance broker who is separated from his wife. The respondent had been a close friend of the applicant. This friendship extends back from the time before the applicant married his wife. In terms of a Deed of Trust, the applicant and his wife had jointly appointed the respondent to be the guardian of their three minor children in the event that both the applicant and his wife died or became incapacitated before their children attained their majority. The applicant had provided the respondent with guidance in starting her current business venture. The respondent had lent the applicant money to tide him over certain financial difficulties.

The applicant and his estranged wife are engaged in a divorce action. The applicant’s estranged wife is presently residing with the respondent. The applicant’s wife left him to stay with the respondent on 14 January, 2012. The applicant pays for the children’s medical aid, extra mural classes, stationery and a full time tutor to assist them. The three minor children born of the marriage between the applicant and his estranged wife are Z, born in 1997, M, born in 1999 and C, born in 2001. These minor children have been residing with the applicant for the last few months. The two minor daughters are both ‘friends’ on Facebook with the respondent. A ‘friend on Facebook’ is a ‘term of art’ to which I shall later refer. The applicant and the respondent were friends on Facebook but, consequent upon the applicant’s wife leaving him and moving into the home of the respondent, the applicant has ‘defriended’ the respondent.

The applicant complains that the posting in question publishes information which portrays him as:

(i) A father who does not provide financially for his family;

(ii) A father who would rather go out drinking than caring for his family;

(iii) A person who has a problem with drugs and alcohol.

The applicant’s attorney, in her letter dated 28 February 2012 addressed to the respondent, referred to the possibility of a claim for damages. The respondent claims that she posted the posting not to defame the applicant but in order for the applicant to reflect on his life and on the road he had chosen.

The law the Court relied on

The lawyers involved in the matter conducted what appears to be fairly substantial research on the law on defamation online and with reference to Facebook. Judge Willis relied fairly heavily on two academic articles by –

The Court quoted extensively from Roos’ article, largely as a means to understand Facebook and its mechanics. Although reliance on Roos’ article and her explanation of how Facebook works may not be integral to the judgment, it is unfortunate. Roos appears to have a fairly limited understanding of how Facebook and its privacy settings work and this gives the impression that activity on Facebook is unavoidably more public than it need be. One example of this is Roos’ explanation of Facebook’s primary privacy options:

In Facebook there are three privacy settings to choose from for information other than the user’s name, profile picture, gender and networks. Users can choose to make other information visible to “everyone”, or to “friends of friends”, or to “friends only”. It is important to recognise that a “friend” on Facebook is someone you have listed as a “contact” – such persons are not necessarily friends in real life.

Users can control their visibility to some extent by using the privacy settings to make personal information available only to friends, and of course by limiting the number of friends or contacts they add to their networks. In general, however, most users give out an extraordinary amount of information.

The last part about people sharing a lot of information is true, of course, but what Roos missed is that users can also share fairly selectively using Facebook lists which stand apart from the default “Public”, “Friends”, “Friends except acquaintances” and “Only me”. To be fair to Roos, though, her article was published in 2012 and Facebook’s privacy controls have changed since then and, in many respect, have become somewhat more secure in some respects, and have eroded protections like users’ privacy by obscurity. That said, she made a few good remarks about what I see as privacy’s contextual nature:

In the context of SNSs, one could argue that subscribing to an SNS and completing your profile information is similar to appearing in a public place. The Internet is a very public place, and Facebook clearly warns subscribers that their privacy cannot be guaranteed. However, in my opinion the privacy settings that one choose, should also be taken into account when considering whether a person has really chosen to disclose his or her information to an indeterminate number of persons. If you chose to reveal your personal information to “Friends Only” and if you limited the number of friends that you added, it could be argued in my opinion that you did NOT choose to reveal your information to an indeterminate number of persons. You have, in fact, revealed your personal information to a limited number of people. If one of your Facebook Friends then further discloses personal information that was provided by you in these circumstances, I would argue that you should have a delictual claim for infringement of privacy.

Roos made another important point to bear in mind when considering whether a person’s right to privacy has been infringed is similar to a defamation analysis (and which Judge Willis touched on in his judgment):

It should also be remembered that the wrongfulness of an infringement of privacy is negated by the presence of a ground of justification. Neethling identifies the following traditional grounds of justification as relevant to the right to privacy: necessity, private defence, consent to injury, and performance in a statutory or official capacity. Another ground of justification which is relevant to privacy is the protection of legitimate interests, including the public interest.

In the context of SNSs, consent is a particularly relevant ground of justification. Whenever the user discloses personal information on his webpage, he or she consents to the publication of that private information. However, in order to be valid the consent must meet certain criteria.

She then went on to discuss the parameters of the consent required to justify a privacy infringement. Essentially, consent must be informed although in light of the Protection of Personal Information Bill, we can adopt the Protection of Personal Information Bill’s defintion of “consent” as –

any voluntary, specific and informed expression of will in terms of which permission is given for the processing of personal information

Unfortunately Roos’ understanding of Facebook’s privacy controls and how it works, generally, is limited as expressed by her article and Judge Willis has accepted her explanation as a complete and accurate exposition of privacy on Facebook. This will likely, and unfortunately, colour future Court judgments regarding Facebook privacy issues. One inaccurate statement is Judge Willis’ understanding that –

Accordingly, although one can control one’s own Facebook profile but there is no method, within the Facebook system itself, by which one can control what other people place on their profiles about
oneself and who can look at that.

This is not really correct. Users have the ability to exercise a fair amount of control over whether other users can post their personal information and tag them (Roos seems to have largely misconstrued how tags can be restricted and controlled by the person being tagged).

After exploring Twitter briefly, Judge Willis turned to established case law in South Africa including authority for the proposition Roos expressed that a privacy infringement can be justified in a similar way that defamation can be justified and a more recent Supreme Court of Appeal judgment in the 2004 Mthembi-Mahanyele v Mail & Guardian case which, according to Judge Willis –

affirmed the principle that the test for determining whether the words in respect of which there is a
complaint have a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned

The Court, in the Mthembi-Mahanyele case set out the test for defamation as follows (and cited a 1993 case in the then-Appellate Division of Argus Printing and Publishing Co Ltd v Esselen’s Estate) –

The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words . . . to convey a meaning defamatory of the plaintiff. . . . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’

Referencing one of the justifications for (or defences to) defamation, namely that the defamatory material be true and to the public benefit or in the public interest, Judge Willis drew an important distinction that is worth bearing in mind –

A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The courts do not pander to prurience.

The Court moved on to explore another justification, fair comment. In order to qualify as “fair comment” –

the comment “must be based on facts expressly stated or clearly indicated and admitted or proved to be true”

The person relying on this justification must prove that the comment is, indeed, fair comment and “malice or improper motive” will defeat this justification or defence, regardless of its demonstrably factual nature. In this particular case, the Court found that W acted maliciously and she was unable to prevail with this defence.

The Court’s finding

Flowing from the Court’s finding that W’s Facebook post was defamatory and unlawful, Judge Willis considered a procedural issue. H instituted proceedings on motion, which means that H used an expedited approach relative to the more conventional trial action and sought a court order requiring W to remove the post and stop posting about H (the very simplied and incomplete version). Normally an applicant instituting motion proceedings would be asked to explain to he Court whether there is “an absence of similar protection by any other ordinary remedy”. W’s legal team pointed out (as respondents frequently do) that H could have sued her for damages (monetary losses) through a trial action.

Judge Willis considered this argument and took a pretty important step in developing the common law that governs these sorts of proceedings. He said the following:

It is in respect of the remedy where infringements of privacy take place in the social media that the common law needs to develop. The social media form a subset of the electronic media but are not coextensive with it: the social media are all part of the electronic media but not all the electronic media are social media. The electronic media were, almost certainly, beyond the imagination of the court when Setlogelo v Setlogelo was decided in 1914. Not only can items be posted and travel on the electronic media at a click on a computer in a moment, in an instant, at the twinkling of an eye, but also they can, with similar facility, be removed therefrom. This can also be done at minimal cost. The situation is qualitatively different from the scenario where newspapers have been or are about printed in hardcopy and distributed. The law has to take into account changing realities not only technologically but also socially or else it will lose credibility in the eyes of the people. Without credibility, law loses legitimacy. If law loses legitimacy, it loses acceptance. If it loses acceptance, it loses obedience. It is imperative that the courts respond appropriately to changing times, acting cautiously and with wisdom.

He went on to explain that –

[t]he historical reluctance of the courts to interdict publication in the media has its roots only in the issues relating to technology and economics that arise from ‘stopping the press’ but also a concern about the social consequences of stopping the free flow of news and information. This concern about the ‘chilling effect’ of court orders on freedom of expression has been manifested in the case of National Media Limited v Bogoshi recently decided in the SCA.

This is an interesting perspective. Just as social media accelerates the rate at which people can share (and remove) their thoughts, it also addresses the courts’ concerns about ordering that defamatory materials be removed from these social services because the costs involved are minimal. Ironically, though, litigation remains a pretty costly exercise so this must also factor into litigants’ cost analysis. For the courts, though, it would seem that the social Web removes an obstacle to judicial activism when it comes to defamation. Of course it isn’t just about the economics involved, courts will continue to assess the relative value of one party’s right to freedom of expression when weighed against the other other’s right to dignity, for example. As Judge Willis points out –

resolving the tensions between every human being’s constitutionally enshrined rights both to freedom of expression and to dignitas is all about balance. In the case of Le Roux v Dey Freedom of Expression Institute and Another as amici curiae) the Constitutional Court emphasized the need to take into account the context in which a publication occurs.

W’s advocate attempted to argue that H could take the matter up with Facebook itself as a violation of its terms and conditions but Judge Willis wasn’t convinced. He didn’t feel there was anything before him to “assure me that Facebook would comply with such a request”. He further noted James Grimmelmann’s argument that “it is better for the courts to focus on users rather than Facebook itself if intrusions on privacy are effectively to be curbed”. Essentially, “if one wants to stop wrongdoing, it is best to act against the wrongdoers themselves”.

Media reports about this case referenced the orders H sought against W which included a prohibition on W “posting any information pertaining to the applicant on Facebook or any other social media”. Judge Willis refused to grant this order as he said he has “no way of knowing for certain that there will be no cicumstances in the future that may justify publication about the applicant”. I think he made the correct decision there and this means that these complaints will have to be dealt with on a case by case basis with careful consideration of each case’s merits.

The Court also refused to grant orders placing W under arrest if she fails to comply with the order and that the Sheriff of the court be ordered to remove the offending post. Instead W was ordered to remove the posts and pay H’s costs. As a practical matter, Judge Willis made the following point:

Those who make postings about others on the social media would be well advised to remove such postings immediately upon the request of an offended party. It will seldom be worth contesting one’s obligation to do so. After all, the social media is about building friendships around the world, rather than offending fellow human beings. Affirming bonds of affinity is what being ‘social’ is all about.

A few more interesting points

Judge Willis went on to deal with public figures and the prospect of having to deal with a flurry of relatively minor complaints after this judgment.

With respect to public figures, he pointed out that while they enjoy a right to privacy, “[t]here is legitimate public interest in the affairs of public figures” and this means that they may not enjoy the same degree of protection as citizens not in the public spotlight when it comes to defamation online. As Judge Willis put it –

Trenchant commentaries on the performances of politicians as politicians, entertainers as entertainers, musicians as musicians, artists as artists, writers as writers, poets as poets, sports stars as sports stars will generally pass legal muster, even if posted in the social media. When it comes to freedom of expression in South Africa, there are oceans in which to swim and upon which to sail as freely as the wind blows.

When it comes to the prospect of being inundated by defamation claims (my words), the Court referenced the National Media Limited v Jooste case and Judge of Appeal Harms’ comments that –

the question of whether private facts are worthy of protection is determined by reference to ‘ordinary or reasonable sensibilities and not to hypersensitivities’.

Similarly, Grimmelmann has referenced the legal maxim de minimis non curat lex which Judge Willis translated as “the law is not concerned with trivia”. Ultimately, the cost of litigating, even when it comes to motion court proceedings of this nature, will stem the flow of applications to court. Litigation remains a costly exercise and this cost may not always be warranted, regardless of how hurtful the comments may be. This is especially so in the context of motion court proceedings where courts tend not to grant damages as relief because of how these motion court proceedings work.

Lastly, the judgment didn’t deal with another complication: the infamous Streisand Effect. This phenomenon kicks in regardless of your entitlement to protect legitimate rights. It has the ability to effectively negate the practical value of a court order such as the one Judge Willis granted and should always be carefully considered and weighed up against the risks in any matter. There are going to be cases where it is better to walk away and focus on damage control and other cases where it is worth risking the phenomenon and going to court. A critical factor will be whether the legal advice you take is adequately informed about not only the law but the social Web dynamics to form a better risk assessment before you pull the trigger.

This case is an important one. It advances the law dealing with social Web issues and, if it is upheld or applied by other (and higher) courts, it will change the tone for how courts will deal with issues like online defamation and privacy.

Shaun Dewberry and NetDynamix clash over streaming radio statistics

Studio Microphone

 

A storm over Netdynamix’s reported listener statistics has erupted after Shaun Dewberry, a self-described “digital rockstar with a passion for rock music (especially South African), motorcycles (especially Superbikes), and life hacking (especially nmap)”, published a report titled “The Truth Behind Streaming Internet Radio In South Africa” challenging Netdynamix’s reported statistics. NetDynamix is an audio streaming service provider and services online radio streaming channels including the popular 2OceansVibe Radio and Ballz Visual Radio. According to Dewberry:

There is a growing hype being spread of streaming radio’s massive and escalating success as an alternative to terrestrial radio in South Africa. The reports available suggest listeners are taking to the medium like fish to water. 2Oceansvibe Radio has a new second studio in Melrose Arch. Ballz Radio is leveraging a network of sports personalities to grow content and listenership.

2Oceansvibe Radio now states they have up to 60 000 listeners an hour. Ballz Radio, after two months online, claims in the region of 51 000 listeners between 12 and 6pm. Even smaller community stations such as KingfisherFM were up to 20 000 monthly listeners in March.

Sponsors and advertisers clearly need to jump on board this segment that is now beating down terrestrial radio.

So what is the reason behind this amazing growth in the sector?

The falling cost in broadband? Increase in mobile access to Internet? A general dissatisfaction with terrestrial radio?

In my professional (and personal) opinion, I state that there is only one explanation for these proclaimed levels of listenership – they are complete fabrications. Utter nonsense. Lies, even.

 

In a demand letter to Dewberry, NetDynamix’s attorneys accused Dewberry of defaming NetDynamix and harming its previously “un-impeachable reputation in the industry”. NetDynamix has also published a response to Dewberry’s report and its CEO, Chris Grant, is due to appear on 2OceansVibe Radio this evening to discuss the allegations against his company.

We’re working through the reports, responses and articles about this and will expand on this post with an analysis of the issues and the legalities involved in the next 2 days. We also plan to host a Hangout on Friday where we will discuss the story a little further. Keep an eye on this post and check back for updates on Friday.

Analysis

Nastassja at Jacobson Attorneys analysed the issues a little further and prepared this follow-up:
Shaun Dewberry published a report on 25 June 2012 in which he claimed that NetDynamix’s figure for online radio figures “are complete fabrications. Utter nonsense. Lies, even.” His report followed a report about listenership issued by NetDynamix in which they claimed listenership for some of its client radio stations that went into tens of thousands. NetDynamix then responded in a press statement saying they have no reason to inflate the listener numbers as they do not charge on a pre-listener basis.

 

On 26 June 2012 NetDynamix issued a letter of demand to Dewberry demanding him to remove his report from his blog and also to remove his comments from Facebook and Twitter. The demand letter further stated that if he failed to remove his report and statements as demanded that he could face the risk of an urgent High Court interdict application against him and a claim for damages for any financial loss suffered by NetDynamix.

The first issue is what does this letter of demand seek to achieve and what are the possible consequences of failing to fulfil the demand.

A letter of demand is a document which should always try to be used before legal recourse is sought. The purpose of such a demand is to request from the recipient payment or performance of a legal obligation and to persuade the recipient to pay the amount claimed or to settle the dispute without the necessity of expensive, time-consuming litigation and a trail.

Dewberry failed to remove his blog post or social media statements. The possible implication of his failure to comply with the demand is set out as follows in the letter of demand:

  • NetDynamix will launch an urgent High Court interdict application against Dewberry, with the implication that the High Court will be asked to simultaneously order that all of the legal cost incurred by NetDynamix will be paid by Dewberry.

  • Claim damages from Dewberry for any financial loss that our client may suffer as a consequence of Dewberry’s alleged defamatory publications of and concerning NetDynamix.

The procedure concerning the above:

A normal interdict is brought using the motion procedure. In our law of civil procedure there are two basic procedures namely the motion procedure and the action procedure. The main difference between the two civil procedures lies in that if there is a dispute of fact the action procedure must be followed as opposed to a matter where there is no dispute of fact where the motion procedure is then used.

The motion procedure is a procedure where the matter is argued on the papers and no oral evidence is usually allowed. An interdict is brought using the motion procedure and it involves a process where papers and documents are passed back and forth between the parties preceding the motion trail. There are specific time limits for the exchange of such papers and it can involve a lengthy pre-trail phase. However, when an urgent interdict is sought, as in the present matter, the court basically dispenses with these time limits as well as with other rules regarding litigation. The reason for this is that by following the time periods the urgency of the matter will not be address and the matter needs to be resolved as soon as possible to prevent further harm from being caused. However, if an urgent interdict is granted to NetDynamix it only serves as a temporary solution and an order granting an urgent interdict contains a return date upon which the parties need to return to make the order final. The process can become time-consuming and costly.

Defamation

The legal issue at hand is that NetDynamix is attempting to interdict Dewberry to take down his blog post and social media comments because NetDynamix feel that by the blog report and the social media comments it is being defamed.

Defamation essential entails that we all have a right not to be defamed unlawfully. In other words, we all have the right not to have our reputation lowered in the eyes of a reasonable person without a justifiable reason. The legal definition is the intentional infringement of another person’s right to his goos name, or the wrongful, intentional publication of words or behaviour concering another person which has the effect of injuring his status, good name or reputation. In the case of a corporation such as NetDynamix the reputational issue translates into a loss of profit caused by the defamatory statements.

The test for demation is called “the objective reasonable person test” and works as follows:

A reasonable person is fictional normal, well-balanced and right-thinking person with normal emotional reaction and a person of average intellect and knowledge, in other words, not a person with expert knowledge on defamation.

Therefore, would a reasonable person, judge objectively, have thought that NetDynamix’s reputation was damaged by the report written and statements made by Dewberry.  Then if it has been established that a reasonable person would consider it to be defamation the next step in the test is whether the defamation can be justified. Justification takes the form of exceptions to defamation, in other words if NetDynamix can prove that the publication is defamatory it must prove that the publication was wrongful.

Defences and Justifications

Truth and public interest

If Dewberry can prove that his report was true and that he published the report in public interest. However, an interesting further exception is one called “media privilege” or “reasonable publication of untruths”. What this entails is the reasonable publication of false or untrue defamatory statements by the media. For Dewberry to succeed in using this defence it must be established that he is considered to be part of the media. Other factors such as public interest, the nature of the publication and most importantly the tone of the allegations are considered. Further aspects include, the nature of the mass medium used, reliability of the information and the steps taken to verify the information.

Ultimately the test will be to balance two conflicting rights namely NetDynamix’s right to not be defamed and Dewberry’s right to freedom of expression. This balancing will be done by a court of law and it is impossible to determine which right is superior before carefully considering all the fact and factors of the case.

Just to summarise everything

If NetDynamix decide to go ahead with obtaining an urgent interdict it must prove that it is a matter of urgency to justify doing away with the normal time periods and rules regarding the application procedure. However, if NetDynamix are granted an urgent interdict it will only serve as interim relief and a final interdict will have to be obtained which could become time-consuming and expensive.

It will be very interesting to see how the courts will deal with a matter like this in our ever growing web and social based lives. And some of the challenges that the courts will face enforcing an interdict (like in this matter) will be how to quantify the damages to compensate for the possible loss of profit suffered by NetDynamix as the internet has almost infinite reach and it could become challenging to determine the impact of the publication. A further hurdle which the courts may face in enforcing the interdict is the fact that trying to remove something from the internet is like trying to remove pee from a pool. It would be very difficult to remove the report as well as the Twitter and Facebook comments as the news has been spread so far and wide by now that it becomes almost impossible to prevent people from viewing it. To tie into that, a phenomenon which has been starting to merge in similar cases to this one is something called the “Streisand-effect”. The just of this is that in attempting to manage your online reputation by attempting to remove information or statements, etc more attention is brought to whatever it is that you are trying to remove, with the effect that it has the complete opposite effect than what it was attempting.  

 


Image credit: Studio Microphone by Curtis Kennington, licensed CC BY 2.0.

The trouble with online defamation

I frequently receive calls or emails from people asking for help with online defamation, usually on Facebook. The people who contact me are often at their wits’ end and want to sue the people defaming them, thinking that will fix the problem. Unfortunately, that can often make it worse. The challenge with online defamation is that the usual legal approach can aggravate the harm being suffered and the better course of action doesn’t necessarily fix anything. Dealing with online defamation is often a matter of damage control and this is primarily due to the social Web’s nature.

Pro-abortusdemonstratie / Pro abortion demonstration

Social networks like Facebook, Twitter and Google+ empower their users to express themselves on a scale typically not seen before the Web became social. This has shifted power dynamics in profound ways. We recently saw how Facebook and Twitter played important roles in the Arab Spring in Egypt and other countries in the Middle East. It is important that the social Web remain as free and accessible as possible because a free social Web is a powerful tool for freedom generally. At the same time, the social Web, like most tools, has darker applications and defamation online is one of those applications.

Of course, that is an oversimplification. A form of expression can be defamatory and be justifiable and permissible if, on its face, it harms its target’s reputation and yet its publication serves a legitimate purpose. When people contact me about defamation online (the term they often use is “slander”), the published material is often not justifiable and is motivated by malice.

The typical legal response to this sort of defamatory material (or any defamatory material, for that matter) is to demand its removal and that the publisher take some form of remedial action to address the harm caused. The problem is that adopting this approach to defamatory statements or material published online can aggravate the situation far more than the person harmed could have anticipated.

Two case studies illustrate this phenomenon well. The first and older case study involves the performer, Barbara Streisand, and her efforts to stop photographs of her coastal home from being published after it was photographed during a coastal survey. Despite her most efforts, photographs of her house were published online, repeatedly. This case study gave the phenomenon its name: the Streisand Effect. A number of subsequent stories validated and reinforced the Streisand Effect including the 2007 Digg-AACS Encryption Key controversy and, more recently, the 2011 Ryan Giggs-UK “Superinjunction” controversy. Both of these more recent case studies illustrate the challenge of adopting a classic legal approach to a social Web problem. In the 2007 Digg controversy, Toshiba’s attorney at the time, Michael Avery, summed up this challenge as follows:

If you try to stick up for what you have a legal right to do, and you’re somewhat worse off because of it, that’s an interesting concept.

When it comes to defamation online, particularly on social networks like Facebook, defamatory statements’ harmful impact may only be exacerbated by adopting a traditional legal approach. This isn’t to say that the defamation isn’t unjustifiable, harmful and actionable but the very real possibility that addressing this misconduct like a conventional legal problem could drastically inflame the situation, and the resulting harm, is an important consideration when planning a response. What is required is a more flexible approach having regard to the specific dynamics involved as well as the platform used. There is no single approach which will be appropriate for all cases.

So what can be done? From an organizational perspective, implementing an Online Reputation Management solution may make a lot of sense. Companies may be defamed too and this defamation frequently results in reputational harm. Simply monitoring keywords and phrases is part of the process which should also include a more detailed strategic plan for dealing with negative and positive sentiment as well as legal input throughout the process to anticipate and cater for potential legal issue which may arise. From an individual perspective, responses may include reporting abuse with the platform’s proprietor; laying criminal charges; engaging directly; not taking any active steps for the time being and, when left with little choice, having an appropriately worded demand letter prepared and sent to the culprits.

There are other challenges facing online defamation cases which can be similarly difficult to overcome. One concern is that defamers may be publishing under a pseudonym and are effectively anonymous. This presents a fundamental difficulty because you can only really take action against a known party and if the culprit has used pseudonymous handles and names for his or her profiles, email addresses and other identifiers, suing will be a practical impossibility. Another, very real, concern is the cost of legal action relative to the harm suffered. In the case of individuals, litigation costs are frequently prohibitive; potential damages generally less than they may expect and costs recoveries are cold comfort after a protracted and expensive campaign. Costs are less of an issue for companies which tend to be more able to afford these costs but the challenge here is that taking action may lead to a disproportionate increase in the harm suffered making legal action more of a “principle” based decision which is rarely the ideal motivation for legal action.

A lawyer’s role in these sorts of case is less to rush in, guns blazing, and more to get a handle on the situation and help shape responses while anticipating the worst and preparing as much as is possible for a formal dispute. In between there is usually considerable scope for a multi-faceted approach to defamation and the resulting reputational harm where lawyers still play a role. They’re just not necessarily the cavalry anymore.