2016-08-10 06:00

SOUTH Africa is continuously advancing in the communication industry specifically through social media, which has proved to be the most effective and immediate manner to convey information to the public.

Social media is now arguably the primary instrument of exchanging ideas and opinions.

Section 16 of our Constitution entrenches the right to freedom of expression. Our Constitution advocates a progressive attitude towards the rights of the individual.

The question now is whether such a right is limitless? May an individual freely express his or her mind without giving due regard to the infringement of other’s rights?

The answer is “no”.

Section 36 of the Constitution provides for what is known as the “limitation clause” in terms of which one’s rights are limited where such a right would infringe upon the rights of others.

In view of the above two Sections, it is vital for people commenting on social media to think carefully about what they post on social media as posts which infringe other’s rights to dignity and privacy may give rise to a delictual claim known as the actio iniuria injury to personality

This legal remedy affords a person the right to sue for damages if they are able to prove on a balance of probabilities that, as a result of another individual’s social media comments, their reputation or dignity has been damaged.

In order to succeed with a claim, the aggrieved party must show that the defaulting person has

(a) published defamatory matter;

(b) that the matter is in fact defamatory; and

(c) that the comment refers to the aggrieved person which infringes on the persons personality right to a good name.

In the recent case of Heroldt v Wills 2013 (2) SA 530 (GSJ) the court held that the test in determining whether a publication is defamatory or not is to ask the question as to whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning that is defamatory to the litigant concerned.

The court further held that in our law, suggesting that what has been published is the truth is not sufficient as a defence or grounds to justify the publication, the post must be in the public benefit or public interest as well.


Our Constitution provides for basic human rights, which include the right to express our opinion.

However, we are not free to say what we feel like without respecting the rights of our fellow citizens. It is therefore vital to be mindful of the consequences of posting something which may infringe another’s rights.

The following questions can assist a person in determining whether a post would violate another’s rights:

• Whether a reasonable person of ordinary intelligence would reasonably understand the comment to convey a meaning that is defamatory.

• Whether the personal interest of an individual outweighs the public benefit or interest to be informed about the facts.

If the answer to both questions is positive, then one should refrain from continuing to post the comment on social media as it would give rise to a defamatory statement.


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