Defamation and social media: We have moved on from Jane Austen

There is something about internet websites and social media platforms like Facebook and Twitter that seem to bring out the worst in people. Otherwise reasonably decent people who might well carefully weigh their words (and may be polite and generous to friends and acquaintances in private) can become raving hatemongers and irresponsible tattletales on these platforms. In theory, they expose themselves to defamation claims or even – in extreme cases – contempt of court proceedings. While this is probably not going to stop the orgy of half-baked opinions, uninformed speculation and defamatory rants from proliferating on the internet, I am not sure that this is as harmful as some might think.  

Yesterday on Twitter a faceless individual tweeting under the handle “idononothing” railed against “corrupt afrikaaner judges who make deals with afrikaaner prosecutors” (while declining to provide details of the alleged corruption and the names of the corrupt judges and the deals made), before turning his or her ire on me, complaining: “But u report on issues tht only follow ur white supremacy agenda.”

These tweets got me thinking about whether the law should distinguish between defamatory statements published in the old style media and those published on social media websites, and between statements published by “professional” journalists and statements and opinion published by those who are not paid by media institutions to share their views or insights. It also made me wonder whether the law of defamation is of much use in the modern social media world and whether it is advisable for the law to attempt to regulate this somewhat chaotic and cacophonous space.

The law of defamation seeks to protect the interest individuals have in their reputation. If someone makes a statement about you that would tend to lower your esteem in the eyes of others, he or she is defaming you. Anyone familiar with the novels of Jane Austen would know that there was a time in the United Kingdom when a person’s reputation was a pivotal commodity that could determine his or her success in life. The law of defamation aimed to protect this reputation and as such was very much the product of a specific (colonial and Victorian) time and place. To what extent this set of legal rules are relevant in a modern, electronically connected, African state is open to question.

The law assumes that statements attacking your character will normally have the effect of lowering your reputation (and your standing and life chances) in the eyes of others. If someone claims that you are corrupt, a racist or a sexist, a murderer, a wife beater, a drunkard, or a dishonest person, this will be presumed to defame you because it will be presumed that the statement would lead other people to think less highly of you. It is further assumed that such a lowering of your reputation will potentially have catastrophic consequences for your life – something not born out by the lives of the Kardashians or Paris Hilton. That is why the reputation-lowering statements remain defamatory – even when they are true.

Once you have convinced a court that statements made about you are defamatory, it is presumed that the publication was both unlawful and intentional. If you want to avoid liability for making such prima facie defamatory statements, you will have to raise a defence which either shows that the statements were not made intentionally or were not unlawful. As the Constitutional Court explained in Khumalo v Holomisa:

Although not a closed list, the most commonly raised defences to rebut unlawfulness are that the publication was true and in the public benefit; that the publication constituted fair comment and that the publication was made on a privileged occasion.

This means you will not be liable for defamation if you can show to a court that what you had said was both true and was on a matter that was in the public interest. Making true statements about a friend on a matter of no public interest remains defamatory. It also means that if you are a columnist or cartoonist and you make adverse or even scathing defamatory comments about another person on a matter of public interest, you will have a defence to a defamation claim, unless there is no factual basis for the comment or you made the comments with malice. And if you make defamatory statements as a witness in court, you will not be liable for those statements as statements made during judicial proceedings would have been made on a privileged occasion.

Under the influence of the freedom of expression provision in the Constitution our courts have developed another defence that the mass media can invoke to justify the publication of defamatory statements. This defence is not open to ordinary citizens. The Constitutional Court in Khumalo explained the unique position of the mass media as follows:

In a democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility. The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society. If the media are scrupulous and reliable in the performance of their constitutional obligations, they will invigorate and strengthen our fledgling democracy. If they vacillate in the performance of their duties, the constitutional goals will be imperilled.

For this reason the Court affirmed a Supreme Court of Appeal (SCA) judgment which had developed a rule that even if a publisher cannot establish beyond all doubt that a defamatory statement was true, it could still publish the statement if it would be “disproportionately expensive or difficult” to establish the truth – but only if the publisher can show that that “in all the circumstances the publication was reasonable”. This rule requires the media to take reasonable care before publishing a defamatory statement which they cannot prove to be true. It attempts to balance the interest of citizens in an open and democratic society to be informed of public events, on the one hand, against the personal interests of the defamed person on the other. As the Constitutional Court stated:

In determining whether publication was reasonable, a court will have regard to the individual’s interest in protecting his or her reputation in the context of the constitutional commitment to human dignity. It will also have regard to the individual’s interest in privacy. In that regard, there can be no doubt that persons in public office have a diminished right to privacy, though of course their right to dignity persists. It will also have regard to the crucial role played by the press in fostering a transparent and open democracy. …[T]the defence of reasonable publication will encourage editors and journalists to act with due care and respect for the individual interest in human dignity prior to publishing defamatory material, without precluding them from publishing such material when it is reasonable to do so.

Several intriguing questions arise from this.

First, is this defence that a defamatory statement was published under reasonable circumstances open to journalists who use Twitter to report or comment on events, given the fact that the tweet has not actually been published in a newspaper or aired on radio or TV? Given the fact that the line between traditional old style media and new media is blurring, it is difficult to know how a court will respond and where it will draw the line. But I would think Twitter has become such an integral part of delivering news to the public in a modern democracy that the reasonableness defence should be open to journalist-tweeters who tweet on current events.

Second, would the court extend this defence to people who are not full-time journalists and who publish news reports or opinion pieces on Blogs or community-based websites like Groundup? And what about bloggers and other opinion makers who post opinions about current events on Twitter or Facebook? I can see no reason why either the platform used for the reporting or the identity of the author should make a difference to the rule. I would therefore argue that those who publish news reports and opinion pieces on Blogs or websites should also be allowed to invoke the reasonableness defence because these reports and opinion pieces fulfil the same function as those published on traditional media platforms.

Third, how should the law deal with people whose Tweets or Facebook posts have nothing to do with their job descriptions? If they post comments on issues of public concern or about public figures on these social media sites, can they invoke a defence of reasonableness? Recently the South Gauteng High Court granted an interdict, ordering someone to remove her defamatory comments about another person from the social media site. But these comments related to a private person, so the judgment hinged on the fact that the publication of the defamatory claims were not in the public interest. How should the law deal with comments about a political or other public figures posted on Facebook or Twitter by a private citizen?

My personal view on this is rather radical. I believe that in a modern democracy in which many people have access to the internet (and especially to social media sites like Twitter and Facebook) it is impossible to regulate robust, rude and even downright defamatory discussions on public events and on public figures. People will believe what they want to believe about a public figure or about an event and will usually make up their minds after accessing a selective amount of information about that person on the internet (and maybe elsewhere). As a general rule, it will all come out in the wash and really scurrilous and hurtful comments about a person will not be believed (or will be believed by only a few people) because the counter narrative created by all the other views and opinions on Twitter and Facebook will take the sting out of untrue defamatory statements made about a person.

I believe that a person’s reputation in modern day South Africa is far less important than it was in colonial Britain – no matter what the self-serving politicians might claim. Our reputations have also become far less regulated and pampered as a result. As we lead more public lives and advertise our comings and goings on Facebook, as we are supposed to ignore class and social status, and as more people insist – rightly or wrongly – that they judge other people solely on individual merit (leaving aside the toxic influence of racial prejudice), it is unclear why the legal rules remain so obsessed with the protection of our reputations. The law might have to be reserved for cases in which malicious people deliberately publish defamatory statements about other people with the sole intention  of harming them.

Not in a million years will I personally ever consider suing someone like “idononothing” for defamation because he called me a “white supremacist”. Although this is a highly defamatory statement, I would trust Twitter and Facebook – as well as other forms of media, including my own Blog and access to the Daily Maverick – to present another side of the story, which will limit any potential damage to my reputation (such as it might be).

When you sue somebody for defamation, you usually make things worse by attracting attention to the offensive comment. When you do not laugh off a slightly unhinged comment like that, your response sends a signal that the comment really hurt you and might actually be close to the truth. And if you then threaten to sue or actually sue, you might well further harm any reputation you might have left – instead of protecting it from harm. When somebody says something defamatory about me I usually laugh and instinctively feel pity for the person who is so damaged that he or she has to resort to insults to make him or herself feel better about themselves. More politicians and public figures should keep this in mind.

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