It is tempting to think that using Facebook will land you in prison, especially with all the media attention on the Duane Brady case in the Kliptown Magistrates Court. The simple truth is that sticking to a few simple rules should help you avoid that unpleasant experience of receiving a strongly worded letter from an attorney or, worse, an unwelcome visit from an unsympathetic police officer keen on dragging you off to a holding cell for the weekend.
Defamation is more common in our general experience and in our conversations about the risks of expression online. Some people refer to this phenomenon as libel or even slander but the correct term in South African law is defamation. For the most part defamation occurs when someone publishes (this isn’t just a printed publication but really means saying something in some medium or another to two or more people) something that tends to demean another person in the estimation of her peers. We may differ as to how we define it but we know it when we experience it. Proceedings to remedy defamation are conducted in our civil courts.
The Brady case, on the other hand, is a criminal case in which he has been charged with crimen injuria. This is related to but different to defamation (other jurisdictions may refer to this as libel). Crimen injuria includes some of the elements we see in defamation as well as privacy concerns. One explanation of crimen injuria is that it is the unlawful and intention impairment of another person’s dignity and privacy.
Both offences share common threads which are important to bear in mind when plotting a course through this legal landscape. Generally speaking you are heading for trouble if you publish or otherwise speak about another person in such a way that your expression offends, demeans and generally undermines that person’s dignity. Now, not every form of expression which achieves this is actionable defamation or crimen injuria but it is a helpful starting point. Another thing that is important to note is that even if a statement or publication is defamatory, there are a number of justifications available for defamation (although not so much in the case of crimen injuria). These justifications include the fact that the publication was true and in the public benefit; made in jest or sudden anger or fair comment.
There is a sense that because the Brady case concerns Facebook that this is a completely new set of circumstances and requires new law to address it. The social Web has brought with it a sense that the Internet is a lawless free-for-all where anyone can do anything with impunity. Unfortunately (or fortunately, depending on your perspective), this is not the case at all and, as I pointed out in my article on the topic on my firm’s website, the usual rules apply to these changing circumstances (although I do expect to see the law develop to more fully cover these new media).
So what can you do to avoid being locked up or being sued for everything? To begin with, don’t click “publish” if you have just unloaded all your frustration and anger in the heat of the moment. Sleep on it, tone down the language and try stick to verifiable facts. If you are going to express your opinion (and a lot of what you see online these days is opinion), make sure people understand it is your opinion and keep it balanced and fair. Just because you can destroy someone’s reputation, doesn’t mean you can or should.
Remember that this doesn’t just apply to Facebook Wall posts and blog posts, it also applies to comments you may leave on a website or messages you may post on services like Twitter or send by email. Although not a material factor, the size of the potential audience is also relevant because it magnifies the likely harm. It may seem gratifying to tell all 600 of your Twitter friends what a reprobate your former best friend is but the reality of a summons or a pair of handcuffs tends to put that moment of inspiration into perspective.
To quote some movie character: “Be cool”!