How to avoid defamation claims

There is something about internet websites and social media platforms that seem to bring out the worst in people. Reasonably decent people who might well carefully weigh their words can become raving hatemongers and irresponsible tattletales on these platforms.” – Professor De Vos, Constitutional Law Expert.

It appears the social web has become a breeding ground for defamation claims. There is the sense that the Internet is a free-for-all environment where anyone can do anything with impunity. Many seem to be ignorant of the dangers when posting in the public space, and of the need for responsibility and exercising restraint.

An example of a post shared on social media which sparked a media circus in June 2016 relates to a picture of a child taken at a birthday party held at “Koeitjies en Kalfies Kleuterskool” in Centurion. This crèche came under public slamming for allegedly separating a black child from her classmates. Moments after the mother shared a picture of the child taken at this birthday party, the picture started trending on social media for all the wrong reasons.

However, there was an innocent explanation for the black toddler portrayed alone at a table for purposes of the picture. In this regard, eyewitness accounts of the incident agree that the children were about to be seated for a birthday party and that the table could only seat six children. While the rest of the children went straight to the table, the child and another girl walked to the playground instead. Shortly after, the two girls were called to join the party and placed at the next table. As one of the teachers was about to take a photo, the black child started crying and was taken aside to be comforted. At that very moment the photo was taken and shared on the parents’ WhatsApp group.

The owner of the crèche, Mrs Engelbrecht, apologised for creating the wrong impression and said no harm was meant as the picture was viewed without context. Notwithstanding her apology, or listening to her explanation of the context of the photo, Economic Freedom Fighter (EFF) Chairperson, Mandisa Mashego flanked by protesting members, responded: “For us to forgive you, you need to take 10 black children and fund their fees from Grade 1 until they at least get their diploma or some form of qualification.”

The pretext for the orchestrated furore, under the spotlight, was MEC Mr. Andrek “Panyaza” Lesufi’s reaction to this single photograph on social media, taken out of context. The comedy of errors that followed then saw Lesufi preparing to “jump fences”, tweeting that he was going to “face-off with racists” followed by “I don’t play marbles with racists”. Playing for the crowd without a moment of consideration of the potential damage he would be inflicting, he invited social media followers and cadres to tag along. If that wasn’t enough, members of the EFF allegedly threatened to burn the crèche down and take Ms. Engelbrecht’s life. It is fair to say that the survival of the crèche came under threat at that time.

The crèche’s attempt to boost its image by legally clearing its name was dismissed by the South African Human Rights Commission (SAHRC) on 1 October 2019.The SAHRC was not convinced that the racially inflamed rhetoric, so called “race-baiting” was enough to warrant a ruling. Rightly so, they found that:

a. Mr. Lesufi’s conduct did not constitute any form of racial discrimination;

b. race-baiting is not a human rights violation; and

c. actions such as defamation fell outside the scope of their jurisdiction.

By refusing to interfere with the MEC’s freedom to express himself, the SAHRC appropriately reconciled this with vindication of reputation and protection of dignity.

These competing constitutional values underpin the delict of defamation and the offence of crimen iniuria. Not finding any wrongdoing on the part of the MEC, the Commission only advised of the aggrieved parties’ right to rather approach the courts for other suitable relief.

The offence of crimen iniuria and the action for defamation share common threads which are important to bear in mind when plotting a course through the legal landscape. The integrity of a natural person is one of a trinity of interests of human personality which is protected by South African law. The other protected interests are the dignity of and the reputation of the person.

Lessons learnt: You are heading for trouble if you publish or share false statements, or otherwise speak about a person to others, in such a way that your expression offends, demeans, and generally undermines that person’s dignity. To defend yourself against a claim relating to an offending publication, you must prove more than just that you are telling the truth. In this regard, even if it turns out that your published statement is true, there may still be grounds to proceed with legal action against you to claim damages, based on the law of delict, if the statement caused harm to someone’s reputation, ie the estimation in which that person is held by others (their good name and standing).

A defamatory statement is an inaccurate or false statement which is published to others and injures the person to whom it refers by:

a. lowering them in the estimation of others;

b. diminishing their esteem or standing in the eyes of others; and/or

c. cause direct financial losses.

It is established law that not only the author of a defamatory publication could be held liable for defamation, but also anyone who repeats, confirms, or draws attention to the publication of the defamatory statement.

The Constitution also recognises that children are particularly vulnerable to violations of their rights and states that a child’s best interests are of paramount importance in every matter concerning a child. This is echoed in the Children’s Act, as well as in case and common law.

We all agree that although it is nice to be important, it is more important to be nice. The law does not care what you think, the law only cares about what you do. Be careful about posting or sharing accusations, allegations or opinions which are not accurate and which may cause others harm or threaten to their good reputation, dignity, safety or business. Such conduct could constitute defamation which is actionable based on criminal and/or civil legal principles.

This blog is written by, and the personal opinion of, Adv Reneé Caprari, a Referral Advocate in private practice, with extensive experience in corporate, forensic and legal issues relating to civil, commercial and criminal matters. Connect with her on email: [email protected].

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