The Cost of Hot News

In a previous article (  we discussed  how you can protect yourself against cyber-harassment and cyber-stalking and what avenues are available to you when faced with such situations.

We’ll now take a look at how your social media posts can prove to be detrimental to you and your finances as our law of defamation applies to them as much as it does to so called hard copy publications.

Defamation is the “unlawful and intentional publication of a defamatory statement concerning another person which has the effect of lowering the good reputation of the person who has been defamed”.

In order for any defamation claim to succeed, it is necessary to prove:

  1. That the defamatory information was published
  2. That the defamatory information hurt your reputation
  • That the defamatory information referred to you

The person who the information refers to also only has to show that the statement hurt his or her reputation, without having to show that any damage has actually been suffered. The person who published the defamatory information must then prove that the information in question is covered by one or more of the defences discussed .

Let’s look at this using the following possible scenario:

A university student receives a less than satisfactory mark on an English assignment that he/she was certain that they had handled very well. The student goes to see the professor about this and pleads his/her case but there is still no change in the marks. The student, feeling rather disappointed, goes on a Twitter tweeting spree about how the English professor is a lazy slouch with questionable academic ability and was clearly hired to fill up space at the university. The tweet goes out and is commented on and retweeted by a substantial number of individuals.

So does the professor have a case of defamation?

Applying the legal principles set out above, the act of tweeting amounts to publishing. Publishing is the act of making information available to another person. The fact that you have told somebody else about certain information or, in other words retweeted or reposted it on another social media site also amounts to publishing.

Social media accounts nowadays provide for instant publishing. The minute you tweet, retweet, share, post, like, go live on Instagram or Kik amongst other things, all of these acts amount to publishing.

Secondly the tweet definitely hurt the professor’s reputation as people will start questioning his credibility and start looking at him a certain way that is not necessarily good.

Thirdly the tweet referred directly to the professor so that people could immediately identify who the subject of the tweet was.  The student could be fined and other court orders be issued as well such as a punitive order for payment of damages and issuing a public apology.  Talk about more stress in addition to failing the assignment!

So it is very important that you always think before you post, retweet or share anything about someone or something that refers to someone be it on Twitter, Facebook, Whatsapp, Instagram, e mail, instant messenger or any other social media platform as you could find yourself entangled in a web of a defamation claim.

Could you challenge the defamation claim because you really believe that you didn’t do anything wrong and you merely retweeted somebody else’s thought or whatever you tweeted or posted was blown out of proportion?

In order for a defamation claim to fail against you, as a publisher you have to prove that the content in question is true and that it was made in the public interest or that was fair comment, meaning that it was within your right of freedom of expression or that it was made during the course of a privileged occasion.

Let us look at the recent case of the EFF and Mr. Trevor Manuel. The EFF made some comments on their Twitter account in respect of Mr. Manuel which were also repeated on Mr. Malema’s personal twitter account. This tweet was also retweeted a numerous number of times: it should be noted that the tweet made some serious allegations against Mr. Manuel.   Mr. Manuel approached the Court and opened a case of defamation against the EFF as he alleged that the tweet was defamatory in nature. The EFF raised a number of defences including that of truth and public interest, fair comment and reasonable publication and all of these defences failed as it was found that the statement which was tweeted lacked truth. The Court ordered the tweet to be removed from both accounts as the court ruled that the comments made were defamatory and unlawful and that an apology be issued to Mr. Manuel and, in addition, damages amounting to R500 000.00 were awarded. This case was appealed but the South Gauteng High Court dismissed the EFF’s application for leave to appeal.

Another thing to be aware of in this day and age is “fake news”, which, as the name suggests, is news that is false, unverified but which is published. More and more websites are popping up lately sharing news including easily faked images or videos which are questionable and fake because it is easy to do and people are gullible.

We strongly recommend that in such instances you refrain altogether from sharing such news before you get caught up in a defamation suit.

Always take a step back and think and, preferably, verify that salacious item you have seen before pressing that button because you wouldn’t want it coming back to haunt you very painfully.

It is best to have a healthy cynicism  and we  recommend that you verify a site or information it publishes .We suggest that you  read this  Africa Check article on how to verify a website and the individuals behind it .  Another useful site to check on information allegedly published or copied from a so called reliable source is : use  it, for instance,  to check those WhatsApp snippets/rumours so readily sent from people you don’t know  from somewhere you’ve never been .

Be aware that there are many misleading information sources and that you owe it to yourself to be careful before spreading a “hot” piece of news, video or image.