How far can one go in making personal attacks (or impugning / offending someone’s integrity or name), whether on Facebook or on a blog site like this? We have had numerous reactions to and reports of racist postings (including religious paranoia); where do we stand? Defamation / libel can be both a criminal charge and a civil action for damages!
Below is extract from the recent report on a case in point (News24):
‘The judge said in his judgement that the woman’s post was not in the public interest or benefit.
“She has been unable to justify her posting. The background to the posting, together with the words themselves, indicates that the respondent acted out of malice when she posted the offending comments,” the judge said and added that the man had a right to privacy and that his reputation must be protected.
Judge Willis also said that common law needed to develop to take social media into account.
“ …The law has to take into account changing realities not only technologically but also socially or else it will lose credibility in the eyes of the people. Without credibility, law loses legitimacy.
“If law loses legitimacy, it loses acceptance. If it loses acceptance, it loses obedience. It is imperative that the courts respond appropriately to changing times, acting cautiously and with wisdom.”
Amongst the functions of communication (singularly or collectively) is to inform, educate and communicate (even confuse!).
In doing so, the communication must be fair comment, truthful and in the public interest as a two way process of interaction. However, when one party chooses not to respond.... that is also communication (like telling you; ‘F... u!’)
Herein, I am not presenting myself as an expert in communication law; however, I look at it from a layman’s angle….that involves all of us!
The FaceBook case is seen to be a flagrant violation of privacy of an individual and thus actionable; the personal affairs of a husband and wife (ex or not) are not in the public / social domain for discussion / disclosure. Ironically, one can ‘gossip’ amongst one’s own social circle, friends or family on a personal level (and get away!)….. but cannot publish the ‘gossip’ in/on media!
I doubt that most bloggers fall within that ambit, despite some questionable postings / comments (the atheists, religionists, fundamentalists, group interests, extremists, etc) in the absence of intention / malice! Maybe, the takes on the ANC / JZ might be a spot of bother at times (which gave rise to the action against Zapiro….) or the Islamic ones!
Besides, the job of people like Zapiro is to lampoon, ridicule, show up, etc as a cartoonist. However, can one then claim that such cartoons are pre-meditated, thought and planned out to attack a particular individual, persons or group…. With intent (mens rea) to harm one’s integrity?
But then, where does one draw the line to educating / informing others? And where does freedom of speech end?
Finally, very few defamation / libels suits succeed; most are either settled out of court or….. withdrawn. This is because of who the alleged victim is and the extent of the ‘injury’ to his/her name.
'I might not agree with what you say, but.... will defend to death your right to say it!'
Now which suicide bomber repeated that?
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