Don't slander your friends on Facebook or you will be sued.

2013-02-02 06:40

The High Court has set a new legal precedent after it granted a South African Facebook user an interdict preventing a friend from posting about his personal life after she insulted him on the site. You may now have to be a little bit more conservative when posting about the details of your friends’ personal lives on Facebook or face a case of defamation. In court the applicant sought an interdict and restraining order against the respondent from posting any information pertaining to him on Facebook or any other social media. The respondent was the author of the following posting on Facebook about the Applicant:

I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified.  Remember I see the broken hearted faces of your girls every day. Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to take responsibility for the consequences of your own behaviour? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, do you still see a man?

The Judge mentioned that it was common cause that the applicant enjoyed a good party and that he liked his social intercourse to be lubricated with alcoholic beverages and that he often communicated on both Twitter and Facebook. The respondent had relied on these facts as grounds of justification for publishing the posting in question. The respondent refused to remove the posting, despite having been requested so to do by the applicant, acting through his attorney.

The applicant separated from his wife and the respondent had been a close friend of the applicant. This friendship extended back from the time before the applicant married his wife. In fact, she was jointly appointed to be the guardian of their three minor children. The applicant and his estranged wife were engaged in a divorce action and the applicant’s estranged wife was residing with the respondent. The parties’ two minor daughters have been residing with the applicant and were both friends on Facebook with the respondent.

The applicant complained that the posting in question published information which portrayed him as a father who does not provide financially for his family, a father who would rather go out drinking than caring for his family and a person who has a problem with drugs and alcohol. Our law provides rights to privacy and to freedom of expression which originated from ancient Roman Law and enshrined in our Constitution. Facebook and other social media have created tensions for these rights in ways that could not have been foreseen by the Roman Emperor or the founders of our Constitution.

The court emphasised that the pace of the march of technological progress has quickened to the extent that the social changes that result therefrom require high levels of skill not only from the courts, which must respond appropriately, but also from the lawyers who prepare cases such as this for adjudication.

The privacy settings on Facebook enable a user to do the following:

To control the list of friends;

To determine when to ‘check in’;

Remove oneself from Facebook search results where one does not want people to be able to search Facebook for information about one;

Remove oneself from Google;

Avoid the photographic/video tag mistakes;

Enable HTTPS (internet security settings) where one can set up security alerts and login alerts;

Make information about ‘contacts’ private;

Avoid embarrassing wall posts about oneself;

Gain access to information available to applications such as ‘Farmville’ and others;

Instant ‘Personalization’ through which one can stop other websites from viewing one’s personal profile.

One can control one’s own Facebook profile but there is no method, within the Facebook system itself, by which one can control what other people place on their profiles about oneself.

In our law, it is not good enough, as a defence to or a ground of justification for defamation, that the published words may be true: it must also be to the public benefit or in the public interest that they be published. A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The Judge was of the view that it was neither to the public benefit or in the public interest that the words in respect of which the applicant complained be published, even if it is accepted that they are true. The Respondent was unable to justify her posting and acted out of malice when she posted the offending comments. The court also found that the posting by the respondent was unlawful.

The court noted that as an instrument for spreading love, friendship, fun and laughter around the world, Facebook is incontestably a force for good, however, Facebook is fraught with dangers especially in the field of privacy.

The respondent contended that the applicant could have approached Facebook, reported the abuse and asked for the posting to be blocked but there was nothing before the court to assure the Judge that Facebook would comply with such a request and it is therefore better for the courts to focus on users rather than Facebook itself. The court noted that if one wants to stop wrongdoing, it is best to act against the wrongdoers themselves. The court ordered the respondent to remove all postings which she posted on Facebook or any other site in the social media which refer to the applicant and that the respondent had to pay the applicant’s costs in this application.

The court was correct in ordering the Respondent to remove the posting, not only for the reasons in the judgement but also if one considered the best interests of minor children of the Applicant. The children were also friends on Facebook with the respondent and the posting described the applicant as a bad father. On this point alone the court should have awarded the relief that was sought. The High Court is after all the upper guardian of all minor children and should have interdicted the Respondent to post any information pertaining to the Applicant's divorce.

The judge noted that those who make postings about others on social media such as Facebook and Twitter would be well advised to remove such postings immediately upon the request of an offended party and that social media should not be used as a tool to offend fellow human beings.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

A:1st Floor, 56 Shortmarket Street, Cape Town, 8000

O: +27 (0) 21 422 1323

W: www.divorceattorney.co.za

T: @bertuspreller

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