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.
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.
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.