Social media is vastly accessible. A post typed out on one’s phone in a moment can be immediately available to countless users around the globe. When one has been bitten by a bad business practice, it can be temptingly satisfying and even feel like the selfless discharge of a moral duty, to tap out and share a NAME AND SHAME post. The perpetrator will feel your rage and lose business, perhaps even contact you to make things right, and others will be saved from falling into the same position you find yourself in.

But is it a good idea? Specifically, is it safe from a legal point of view to mouth off online?

In a recent judgment, the High Court was called upon to decide the bounds of free speech when a nasty business encounter is publicised on social media.

Mr JE was an unhappy man. He had bought an expensive car part from company AMT. There was a dispute as to whether or not the part was supplied damaged. Either way, JE found himself out of R15 000,00 and with no usable part. Phone calls to the business became acrimonious and did not resolve the matter. JE turned to the popular consumer website Hello Peter and and posted complaints about his experience, in emphatic terms.

Company F, mentioned in the complaints and run by family members of the people behind AMT (since liquidated), took exception to the unfavourable publicity and sued JE to remove the complaints and desist from publishing any untrue allegations on the internet or in print media.

The court noted that, as in any defamation case, the company had to prove that there had been a publication by JE of defamatory material infringing its good name or reputation. Even true statements could be defamatory. Wrongfulness and intention on the part of JE were then presumed unless he could establish a defence allowing him to escape liability.

It was common cause that JE had intentionally published the complaints about the company, but it was disputed whether the posts were defamatory, wrongful or justified.  JE claimed that he was exercising his right to free speech and that the statements were true and published in the public interest.

To determine wrongfulness and defamatory content, the court indicated that the ordinary meaning and any innuendo in the statements had to be established. Then, one had to consider whether these damaged the company’s reputation, in the opinion of a reasonable person. If the statements were wrongful and defamatory, then JE had to prove a justification in law for publishing them.

Fair comment would be acceptable if it was expressed as comment on true facts, was fair, was not prompted by spite or malice, and was in the public interest.

In this case, the complaints contained statements based not on reliably proven facts but on allegations passed on to JE from third parties.

Proof of substantial truth would ordinarily be sufficient, however as JE alleged fraud, dishonesty or criminal conduct on the part of the company, every aspect of his allegations had to be true. The posts complained of were in fact not strictly true. JE had extrapolated from his experience to warn all and sundry that company F was the same as AMT (it was not) and that the company would deliver defective goods and fail to refund customers as a general rule.

The publication was not fair as the company had had no opportunity to comment before publication was made.

The court found that JE did publish out of spite and malice, as he had had no dealings with company F but was angered that AMT had not refunded him.

The court noted that a defamatory publication which was untrue or only partly true, could never be in the public interest. The court mentioned that members of the media, who are bound by codes of conduct, enjoy special protections against defamation claims, in that they can be excused for publishing false defamatory statements if it was reasonable to do so. Private citizens do not have this right.

The court found that the publications were defamatory and that they were neither fair comment nor truth in the public interest. JE had unleashed falsehoods and half-truths into social media with “unlimited global reach” and had overstepped the bounds of his constitutional right of free speech.

In the premises, JE was ordered to remove his complaints, desist from publishing further untrue statements, and pay both parties’ legal costs.

This case should serve as a cautionary tale for all social media users. As satisfying as it is to unleash a torrent of complaint at a company with whom one has had a below par experience, the consequences can be serious.One should think twice and three times before posting angry words on a global platform.

The court mentioned that liability for defamation can attach not only to the original poster but also to any person who repeats, confirms or draws attention to it. The fact that the defamatory comment was already in the public domain was no defence. Thus one should also think carefully before hitting the “share” button.


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