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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,... Continue Reading →
As you know, the Pretoria High Court granted the media permission to broadcast the upcoming Oscar Pistorius trial but don't expect to see TV footage of Pistorius or his witnesses giving evidence. Judge President Mlambo has imposed a number of restrictions on the coverage you can expect in the coming weeks. The reasons for these restrictions stem from the considerations Judge Mlambo took into account and how the judge balanced a number of competing rights.
For one thing, you probably won't see any video of Oscar Pistorius' or his witnesses' testimony (although you may hear it on radio). You won't see close-ups either. This decision is more about upholding rights than it is about the hype.
A recent Dutch court handed down a fascinating ruling which sided with ISPs who were under pressure to block the infamous Pirate Bay. What is really interesting about the ruling is that the Court found that ineffective blockades infringed ISPs' rights under the European Charter of Fundamental Rights: In its ruling the Court states that... Continue Reading →
A common and persistent misconception about social media is that the ordinary legal rules don’t apply. I still remember the incredulous tweets around the time of the Oscar Pistorius bail application from people who were astonished that a tweet can be defamatory. How often have you retweeted something amusing or even outrageous without a second thought about the possibility that you could be sued for that simple action? As the law stands, both in South Africa and elsewhere, this is a very real risk so the next time you see something scandalous and are about to reshare it, think again.
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.
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.
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 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).