Can posting comments on Facebook land you in hotwater!?

Some Facebook users might believe that their existence in the social media arena, entitles them to a ‘free-for-all’, ‘anything goes’ way of expressing themselves. Whilst freedom of expression is a cherished Constitutional right, recent case law has changed the way in which Facebook users will post comments. Users will now have to consider whether their comments are defamatory before posting them, otherwise they may face a new harsh reality: damages.

Although Facebook is a public platform, it allows it’s users to determine their own level of privacy and what content they wish to post and share. Should the user’s posts become questionable, Facebook administration will step in and remove content that is considered violent; threatening, promotes self harm; bullying and harassing; hate speech; and nudity and pornography. However recent judgments of Herholdt v Willis and Isparta v Richer have shifted the responsibility of posting non-defamatory content to the actual Facebook user.

In Herholdt v Willis, Judge Willis granted an interdict in respect of defamatory statements posted by one Facebook user on another Facebook user’s wall.
The comment posted by Mr Herholdt read as follows:

“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?”

Using the Appellate Division’s test for defamation, Judge Willis ruled that upon reading the above post, a reasonable Facebook user would attach a defamatory meaning to the words, even if the content were true! He ruled further that none of the defences to defamation would succeed and therefore ordered that the offending post be removed.

So why not just remove the post yourself and block the offender though Facebook’s available privacy mechanisms!? Judge Willis was of the opinion that, the courts ought to take an active stance against users (the wrongdoer), as opposed to a stance against Facebook, and that such an approach would be more effective in curbing wrongdoing.

In Isparta v Richer a similar situation arose when one Facebook user wrote a defamatory statement on another user’s wall. The difference in this case was, that the offender’s husband was tagged in the aforementioned post. Both the offender and the tagged husband were held liable for the defamatory comment and ordered to pay R40 000.00 in damages. The court found that the offender’s husband had allowed himself to be coupled with the post and therefore stood accountable for damages.

If you wish to express yourself on Facebook, the content must not only be true, but it must be to the public benefit or in the public interest that it be published. Furthermore the user who posted the comment will bear the onus in proving that the comment is true and in the public interest/benefit or amounts to fair comment.

My advice: Think before you publish. If you have an issue with a fellow Facebook user- take it up with them personally, as publication of a nasty comment on a facebook wall, which is unwarranted and spitefully done, might land you in hot water!

Further reading:
• 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); and
• Associate Professor of Law at the New York Law School, James Grimmelmann (his article is titled “Saving Facebook” and can be found in the 2009 Iowa Law Review).


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