Eldorado Park man prosecuted for criminal defamation on Facebook

The Times has reported that Duane Brady, an Eldorado Park resident, has been charged with crimen injuria in the Kliptown Magistrate’s Court on the basis of derogatory comments he posted on Facebook (his profile seems to have been removed or disabled). (Disclosure: Sashni Pather approached me to comment on the story and I have been quoted in the article)

As with any online publishing platform, Facebook can be used to defame people. In this particular case Brady was charged with a criminal version of defamation called crimen injuria which is basically the unlawful and intention impairment of another person’s right to “freedom from insulting, degrading, offensive or humiliating treatment and to freedom from invasions of privacy” (quoting from Principles of Criminal Law, 2nd edition, by Jonathan Burchell and John Milton). Crimen injuria goes beyond defamation in civil law and incorporates a privacy violation as well. Being a criminal process, it is prosecuted by the State with the person whose rights are infringed playing the role of complainant and witness.

As Peter Grealy pointed out in the article, this offence is not new. What is new is an offence like this being prosecuted based on a publication on a social network like Facebook. At the same time this is hardly going to be the last time this occurs and we can expect to see more cases like this as more and more people join social networks and become aware of their rights. We are also likely to see cases involving defamation and invasion of privacy in civil courts too. Online publishing platforms like social networks potentially have a substantial audience and the prejudice a person can suffer when defamed or when his/her privacy is invaded can be profound.

Tips:

If you find yourself a victim of defamation or an invasion of your privacy you may want to keep a record of the offending material, whether it be in the form of a printout or a digital version of the offending material. If the material is posted online, keep a record of the web page it was located on together with your records. Most browsers offer the option to print a page with the web page address and the time and date the print out was made. The same may apply to digital captures of the material concerned (Mac users can print to PDF from their print menus so use this option).

It is also very helpful to prepare a statement of your own recounting the events leading up to and including the publication of the offending material. Prepare this in your own words (plain language) as if you are writing a story. Start at the beginning and keep going until you have a full account of the history of the matter. Don’t worry about using any legal terms, just the plain facts.

If you want to press charges of crimen injuria with the police, take your statement and a copy of your evidence to your local police station and lay a charge with them. On the other hand, if you would like to sue the other person for defamation, invasion of privacy or some other civil offence, take your statement and documentary evidence to your attorney. Being prepared really helps!

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