Pretend for a moment that you are engaged in a bitter dispute – perhaps it’s a fight over money, a family feud or a messy divorce, a disaffected employee or a vengeful neighbour. You decide to resort to Social Media “to tell the truth” about your nemesis. You feel totally safe doing so – after all, our Constitution protects our rights to free speech, the Internet is a bastion of Freedom of Information, nothing said online is “real”, and anyway who can object to you telling the truth?
Wrong! A recent High Court judgment in Garbade v Jan Van Niekerk (4987/2016)  ZAKZDHC 7 fires yet another strong warning shot across the bows of would-be Social Media defamers, confirming that –
- Online defamation is as unlawful as its real-world counterpart, and
- To defend yourself from a claim for defamation you must prove more than just that you are telling the truth.
A prestigious polo event and accusations of cheating
- A marketer and an events organiser were locked in dispute over payment for a past event.
- When the organiser began work on another event, a high-profile and prestigious polo gathering, the marketer created a Facebook page in its name.
- She then posted statements on the page in which she –
- Warned business owners and jobseekers not to do business with the organiser,
- Accused the organiser of having ‘screwed’ (cheated) many people out of thousands of Rands,
- Advised people to hold onto their money and sanity and rather not get involved with the organiser.
- Threatened by the organiser’s attorneys with an interdict application and a charge of crimen injuria (criminal impairment of another’s dignity), the marketer’s response was an offer to remove the posts, but only if she was paid the moneys she claimed.
- Whereupon the organiser approached the High Court for assistance. The Court interdicted the marketer from “unlawfully interfering with the applicant’s business” and from “unlawfully casting aspersions on the applicant’s character, personality and business reputation.” To rub salt into her wounds, the marketer was ordered to pay all the legal costs.
- The marketer had, held the Court, failed to prove (at least on the papers before the Court – no actual evidence was led) the truth of her allegations that the organiser had “screwed” (in the sense of cheated) hundreds of people. In any event said the Court, her “defiant written response seems to me to make it clear that her attack on the applicant was aimed at ensuring payment of what she claimed was owing to her, and had nothing to do with the public interest or fair comment”.
- There was, held the Court, “no justification for publishing these statements. Even if they were true, it is difficult to see how they could have been in the public interest or fair comment in the context of the law of defamation.”
“Truth and Public Interest”
That’s important because “Truth and Public Interest” is a common defence to defamation claims, but it’s widely misunderstood.
As the Court pointed out: “People need to be aware that the publication of a defamatory statement concerning another person on social media is not excused by the fact that the statement is true. It also has to be in the public interest, which is not the same as being interesting to the public…” (our emphasis). What exactly a court will consider to be sufficiently “in the public interest” will depend on the facts of each case, so take specific legal advice in doubt.
The bottom line – think twice before you post anything online!