LIFESTYLE
20/06/2018 11:33 SAST | Updated 20/06/2018 11:33 SAST

Before You Click 'Post', Know This About Defamation And Social Media In SA

Romeo and Basetsane Kumalo's crusade against 'keyboard warriors who so swiftly jump on the bandwagon to share harmful content' could be the start of many...

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Recently, married media business tycoons Romeo and Basetsana Kumalo revealed that they had laid criminal charges against an author for sharing what they say are "false and defamatory" allegations on social media.

About two weeks ago, claims circulated on social media that "a media mogul" had participated in a sex act with "a popular South African rap artist" while "his famous wife watched", which appears to be the story the couple is taking action over.

Many people lose sight of the fact that the moment something is posted on social media sites, it is considered published and is therefore subject to the laws applicable to traditional media.

"We feel it is our duty to take a stand — both against the individuals involved in spreading these baseless allegations, and also against all those keyboard warriors who so swiftly jump on the bandwagon to share harmful content about others..." read their statement.

"Many people lose sight of the fact that the moment something is posted on social media sites, it is considered published and is therefore subject to the laws applicable to traditional media, such as newspapers," explained attorney Roy Bregman.

"Accordingly, claims for defamation and hate speech as well as dismissal or disciplinary action for social media misconduct become very real possibilities," he added.

Freedom of expression ... is not an absolute right. If what you ... publish via social media platforms has a negative impact on the rights of another, then your right to freedom of expression may be limited.

Defamation

Defamation can be defined as the wrongful, intentional publication of words or behaviour in relation to another person that has the effect of injuring their status, good name or reputation.

"Our courts have recently set a new legal precedent after it granted a Facebook user an interdict preventing a friend from posting about his personal life on the platform, after she defamed him in a Facebook post," said Bregman.

In another case, a woman from Gauteng was awarded R40,000 in damages after claiming that her former husband and his new wife were badmouthing her on Facebook. The judge found that although the former husband was not the author of the posts, he was tagged in to them and knew about them — and allowed his name to be coupled with that of his new wife, thus creating liability jointly with the author of the posts.

Hate speech

Hate speech is any speech, gesture or conduct, writing, or display which may incite violence or prejudicial action against a protected individual or group, or disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by disability, ethnicity, gender, nationality, religion, race, sexual orientation, or other characteristic.

"Although freedom of expression is a constitutional right, it is not an absolute right. If what you say or publish via social media platforms has a negative impact on the rights of another, then your right to freedom of expression may be limited," clarified Bregman.

Dismissal

Disciplinary action, including dismissal for social media conduct, has increased drastically over the past few years, often following on the heels of comments made or posted on social media sites by employees. The Commission for Conciliation, Mediation and Arbitration (CCMA) has dealt with several of these cases, in which the dismissal was found to be fair, based on the evidence garnered from the social media sites.

Some of the grounds for dismissal have included derogatory Facebook status updates, such as in the case of a former South African Police Service (SAPS) member, who was dismissed after he uploaded racist comments on the Facebook page of a prominent politician.

Other grounds have included an employee criticising management, criticising the employer, and employees using social media to convey internal matters related to the business to former employees.

The top four things to take note of before you post anything:

  • Make sure about your facts before posting anything, and ensure that you can back your comments with substantiating evidence and factual information. And remember, making a comment about a friend on a matter that is not in public interest could be defamatory, even if it is true.
  • Regularly check your social media profiles to ensure that your name is not being linked to defamatory statements of others.
  • Do not post anything that could be regarded as incitement to cause harm based on race, religion, ethnic background, gender, sexual preference etc.
  • Adhere to the social media strategy and policies of your workplace. Find out what these are, and if these are not in place, keep your posts legal, ethical and respectful.

"A good rule of thumb is to ask yourself whether you would be willing to say something out loud in a room full of people or colleagues. If the answer is no, then you shouldn't consider posting it on social media," said Bregman.