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Facebook: More Defamation Danger, and navigating the Minefield

Facebook: More Defamation Danger, and navigating the Minefield“…..’tis slander, whose edge is sharper than the sword…..”     (Shakespeare)

A recent High Court decision confirms the dangers of posting (or even just allowing yourself to be associated with) any form of defamatory content on the Internet.

An explosive mixture

An explosive mixture underlay the case:  an acrimonious divorce, on-going litigation still smouldering, and – the spark that lit the fuse – Facebook posts attacking the ex-wife.
Two of the posts, authored by the ex-husband’s new wife and appearing on her Facebook page, were found by the Court to have been defamatory –

  1. A comment which effectively painted the ex-wife as being meddlesome and interfering, and
  2. A far more serious comment that implied impropriety relating to a photograph showing the ex-wife’s 16 year old stepson being pelted with a wet sponge by one of her two minor children (a girl of 6 and a boy of 4) in the bathroom. Commenting that “only a depraved mind can see impropriety” in what was obviously a “jovial domestic moment”, the Court held that this second comment was “scandalous to the extreme”, suggesting that the ex-wife “encourages and tolerates sexual deviation, even paedophilia”.  The damage to her reputation was compounded by “snide comments” added to the posting by friends of the poster.

In the end result both the poster (the new wife) and the ex-husband were ordered to pay R40,000 in damages to the ex-wife, together with legal costs.

Navigating the minefield 

Reduce your risk with these pointers (take advice in doubt) –

  1. The first rule of thumb is obvious but also vital:  “Post in haste, regret at leisure” – if a comment is construed as defamatory you could be sued for millions (think of posts going viral), and you could even risk criminal liability in some cases.  Think twice before letting off steam on Facebook, Twitter or any other online platform!
  2. Bear in mind that you may not be able to recall something once it’s online.  Social media sharing means that as soon as a comment is out in cyberspace, you lose control of it.  It could easily live on out there forever.
  3. Keep an eye on posts etc in which you are tagged.  In this case for example, although it was his wife who had actually written and posted the defamatory comments, the ex-husband was held to be equally liable for them because he knew he had been tagged in them and allowed his name to be coupled to them.
  4. Even sharing or re-posting someone else’s post (“re-tweeting” a tweet in Twitter) exposes you to the same level of liability as the original poster.
  5. It is no protection to only hint at the identity of someone.  Whether the subject is specifically identified or not, the court will look at whether “a reasonable Facebook member” would in all the circumstances understand the posting to refer to that person.  Thus in this case both posts were held to have referred to the ex-wife even though she was identified only by her first name in one post, and not named at all in the second.
  6. Equally, a statement which viewed individually doesn’t seem defamatory may still be held to be defamatory when viewed collectively with other postings.  It is the collective effect of your postings that counts.
  7. Nor can you escape liability by framing something defamatory as a question rather than as a statement.  That’s exactly what happened with the second post in this case, the Court holding that whilst the post was grammatically framed as a question, there was a defamatory statement implicit in it.

Last, but certainly not least, regularly check and adjust your privacy settings to control who can see your posts, and to ensure that you review all posts, updates, photos etc in which you are tagged before they are published on your Facebook wall (see https://www.facebook.com/about/tagging/ for instructions on removing/reporting tags).

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