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.

Isparta Facebook defamation case highlights a fundamental legal question

The recent Isparta v Richter and Another case in the Pretoria High Court expands on an earlier Facebook defamation case in the Johannesburg High Court and addresses a question that most people assume is answered from the start: does the defamatory material relate to the person who claims to be wronged? This case also makes an important point about the kind of compensation successful litigants are likely to receive. It’s not as much as you might expect.

The North Gauteng High Court (in Pretoria) recently delivered a judgment of Isparta v Richter and Another which I found interesting for a few reasons:

The judgment also raises an important point about the kind of monetary compensation successful litigants can expect and is a sobering reminder that the cost of litigating can far exceed a compensation award.

Who Is Defamed?

Acting Judge Hiemstra described the background to the case in paragraphs 9 and 10 of the judgment:

[9] The plaintiff and the second defendant were married to each other, but were divorced after acrimonious litigation. The plaintiff and the second defendant are still engaged in consequent litigation. The plaintiff obtained an order for the committal of the second defendant for contempt of court. She also obtained an interim interdict against him, with a return date in September 2013. The ongoing litigation concerns the second defendant’s alleged failure to comply with a settlement agreement entered into between the plaintiff and the second defendant in their divorce proceedings.

[10] The plaintiff has remarried and the first and second defendants have married each other. The plaintiffs husband has a son aged 16, who lives with her and her husband. She also has two children from her marriage with the second defendant. They are a girl, P-A, then aged 6, and a boy, G, aged 4

The first defendant posted several comments on her Facebook wall which tagged her husband, the second defendant, and which the plaintiff contended were defamatory. You can read the comments in the judgment in paragraphs 13 to 16. The posts attracted some comments from people who seemed to know the parties. The defendants admitted that the first defendant posted the comments on Facebook and that the second defendant was tagged in the comments. The plaintiff’s contentions were set out in her particulars of claim (the document describing a claim and which is usually attached to a summons) and Acting Judge Hiemstra summarised them as follows:

The plaintiff alleges in her particulars of claim that both the comments, quoted in paragraphs [13] and [16], are defamatory of her. The first one she claims, is disparaging and belittles her. She claims that the second one is malicious and aimed at damaging her reputation by implying that the plaintiff allows inappropriate interaction between her teenaged stepson and her minor daughter and that she is a bad mother.

Acting Judge Hiemstra then asked a question which is often assumed to be answered:

Do the comments refer to the plaintiff?

The judgment then evaluated a few tests which other courts had established in order to answer this question. Before I deal with that, bear in mind what the test for defamation is. In the H v W case, Judge Willis reviewed established case law in South Africa including a Supreme Court of Appeal judgment in the 2004 Mthembi-Mahanyele v Mail & Guardian 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’

Judge Willis didn’t seem to deem it necessary to deal with the question Acting Judge Hiemstra asked in the Isparta case but you can see why Acting Judge Hiemstra’s question is pretty fundamental to this case and every defamation case. The challenge facing a plaintiff in a defamation case is as follows (authorities in footnote 4 of the judgment):

A plaintiff in a defamation action must prove that the impugned statements are directed at him or her. If a plaintiff is not directly referred to in the defamatory statement, the plaintiff must plead the circumstances which would have identified him or her to the addressees.

The first test which Acting Judge Hiemstra referred to came from the 1944 English case of Knupffer v London Express Newspapers Ltd and is a two part test:

There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law – can the article, having regard to its language be regarded as capable of referring to the appellant? The second question is a question of fact namely does the article in fact lead reasonable people, who know the appellant, to the conclusion that it does refer to him"? Unless the first question can be answered in favour of the appellant, the second question does not arise …

Put another way –

(a) can the words be regarded as capable of referring to the plaintiff?; and

(b) did the words in fact lead reasonable readers who know the plaintiff to the conclusion that they do refer to her?

South African courts seemed to approve this test although, in a 2009 case in the Johannesburg High Court, Acting Judge Gautchi proposed streamlining the test and formulating a single question:

The only relevant rule is that in order to be actionable, the defamatory words must be understood to be published of and concerning the plaintiff.

Acting Judge Hiemstra found the logic of this revised approach to be “unassailable” and, in applying this test to the facts, found as follows that both comments were understood to relate to the plaintiff.

Framing Defamatory Comments and Whether They Are Individually or Collectively Defamatory?

After dealing with two further issues the defendants’ lawyers raised (whether each offending post should be interpreted in isolation or together – given the timing, a “reasonable Facebook user would have understood all the postings related to issues between the plaintiff and the defendants” – and whether posing one of the comments as a question changed its apparently defamatory nature – it was essentially a statement, so no), Acting Judge Hiemstra considered another interesting question:

Are the comments individually or individually and collectively, defamatory?

Here Acting Judge Hiemstra found the comments are both individually and collectively defamatory:

[32] The first comment is to the effect that the plaintiff is meddlesome and interfering. It is a personal message addressed to the plaintiff. If the first defendant had an issue with the plaintiff, she could have addressed it with her personally However, she chose to publish it on Facebook where all her friends and friends of the plaintiff would read it. Although the first message does not constitute serious defamation, publication thereof on her Facebook wall was gratuitous and with the intention to place the plaintiff in a bad light.

[33] The second impugned posting is scandalous to the extreme It suggests that the plaintiff encourages and tolerates sexual deviation, even paedophilia Some of the defendants’ friends lapped it up with relish and added their own snide comments, compounding the damage to the plaintiff’s reputation.

[34] I therefore find that both statements are defamatory, individually and collectively.

Keeping Up to Date on Technological Developments

In the post about the H v W case, I raised a concern about judges relying too heavily on dated research as authority for how social networks work. In that case, Judge Willis relied on an article by South African Professor of Private Law at the University of South Africa, Anneliese Roos (her article is titled “Privacy in the Facebook Era: A South African Legal Perspective” and was published in the 2012 South African Law Journal) as his basis for explaining how Facebook works.

As I read Roos’ article, it seemed to me that she didn’t have a clear and current understanding of how Facebook worked at the time (and some of its mechanics have changed at least once since her article was published last year). In my post about the H v W case, I wrote the following:

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.

This has started to happen. Acting Judge Hiemstra quoted portions of Judge Willis’ judgment and Roos’ article in order to explain how Facebook works and I am certain we will see this happen more and more going forward. The challenge, of course, is that Facebook (and other services) change their mechanics and settings on an ongoing basis and if court decisions are not going to be based on updated models, we are going to see a strong disconnect emerging between how judges think these services work and how they actually work. The law that emerges from our courts will become problematic because it will be based on inaccurate factual and contractual models.

Hopefully judges will become more familiar with how social networks are changing and update their conceptual models to better fit changing circumstances.

The Finding

Ultimately, Acting Judge Hiemstra found the first and second defendants to have defamed the plaintiff and ordered them, collectively and individually, to pay the plaintiff R40 000. Many people think that a defamation action could earn them substantial monetary compensation if they win and that generally is not the case in South Africa. Acting Judge Hiemstra briefly discussed monetary compensation (or “damages”) in the judgment and, referencing a Supreme Court of Appeal judgment of Mogale and Others v Seima, pointed out that –

awards in defamation cases do not serve a punitive function and are, generally, not generous.

How much a court awards depends on the nature of the defamatory material, the harm suffered and the parties’ standing. Defamation awards are rarely high and are likely exceeded by the costs of going to court in the first place. Another thing to bear in mind is that even though the successful party usually also wins a portion of his or her legal costs too, a successful litigant almost never recovers all his or her legal costs and, if the damages are relatively low, a costs recovery can be even less because it would be measured on a lower court scale which allows for lower recoveries.

<

p>In this case, because the compensation awarded was only R40 000 and that amount is well within the Magistrates Court’s R100 000 limit, costs were ordered on the “appropriate magistrates court scale” which may not have amounted to a significant portion of the plaintiff’s actual legal costs of her attorney and advocate (very possibly in excess of R100 000, likely even more).

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.