If you like or share a Facebook post, which contains questionable information, you can face legal action for engaging in the “chain of publication”. An example is the recent case where the website African News Updates published a fake article titled “Two arrested over 80,000 ballot papers already marked as ANC votes”.
The Electoral Commission of South Africa (IEC) slated the fake report, and highlighted that it is an offence to make intentionally false statements with the aim of disrupting or influencing an election.
The IEC opened a case with the SA Police Service to investigate the source of the false reports, and for referral for prosecution. The article received around 20,000 Facebook likes, which raises the question: Is it a legal risk to share or like fake reports?
Verlie Oosthuizen, a social media law expert and partner at Shepstone & Wylie Attorneys, said there is a risk if a person engages in “the chain of publication”. “When a person likes or shares a comment, they are publishing that comment once again, especially in a Facebook and social media context, as it will appear on that person’s newsfeed,” said Oosthuizen. “In normal circumstances it may only result in defamation. However, in the election context, where there is specific legislation regarding comments about elections, votes, and political parties, there may be statutory liability,” she said.
This means that anyone who shares or likes a dubious Facebook post could face legal action as part of the “chain of publication”.
Just being tagged in a post can land you in trouble…
In 2013, the Pretoria High Court ruled that a person who was only tagged in a defamatory message was liable for defamation. This person was found guilty, as he knew he was tagged in the posts and allowed his name to be used.
Stuart Scott from Webber Wentzel Attorneys said that South African law does not require the defendant to be the originator of the defamatory content. “Merely repeating a defamatory statement made by another person may constitute defamation,” said Scott.
On Facebook it follows that sharing a defamatory post would be sufficient to meet the publication requirement.
Earlier this year: 28 March 2018
IN THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL LOCAL DIVISION,
DURBAN CASE NO: 4987/2016
In the matter between:
HEIDI GARBADE Applicant
TASMYN-JAIN VAN NIEKERK Respondent
The applicant won her case and the respondent
“Point 10”: It is by now generally accepted that the posting of a defamatory statement on social media, such as Facebook, can constitute publication for the purposes of defamation. See Heroldt v Wills 2013 (2) SA 530 (GSJ); Isparta v Richter and Another 2013 (6) SA 529 (GNP). People need to be aware that the publication of a defamatory statement concerning another person on social media is not excused by the fact that the statement is true. It also has to be in the public interest, which is not the same as being interesting to the public, as Corbett CJ pointed out in Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (AD) at 464C.
The point of this Judgement was to point out that you do not have the right to defame or slander another person online, even if the allegations are true. You can be held liable in a court of law for any costs, your words or actions cause for the individual you have vented your antagonism.
So beware your Freedom Speech, you may learn to eat your own words.
References and Sources: Broadband, The High Court of South Africa, KwaZulu Natal Local Division, Durban