Quote of the week

As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
13 June 2007

Free speech and defamation in the Blogosphere

When mystery Rentboy “Skye” started publishing allegations of intimate sessions with several well known South Africans on his Blog, many people – including dear Patricia de Lille – wanted to know why this kind of anonymous slandering was not outlawed.

There is an interesting article in today’s Business Day dealing with this question. It points out – as I have done elsewhere – that the ordinary laws of defamation applies to those who slander others on the Internet but that it would not always be possible to find those people when they act anonymously. Normally one would then be able to go after the company who facilitated the publishing of the alleged defamatory statements, but this is more difficult on the Internet.

The article points towards section 75 of the Electronic Communications and Transactions Act of 2002 , which protects service providers who host Blogs and websites from defamation suits.

The section states that such a service provider is not liable for damages arising from data stored at the request of the recipient of the service, as long as the service provider:

  • does not have actual knowledge that the content of the Blog is defamatory; or
  • is not aware of what is written on the Blog at all; and
  • immediately removes the material or disables access to a Blog once the service provider receives a notice from an aggrieved party about the defamatory statements.

If a service provider takes down material that is not defamatory, such a service provider will not be liable to the Blogger for any damages. This means there is an incentive for a service provider to be “rather safe than sorry” and to take down material – even if it is unclear whether the material is really defamatory or not.

At the same time the section is helpful because it prevents pre-publication censorship. This leaves the Blogosphere relatively free and unregulated because it does not require service providers to act as policemen of the content of Blogs or websites that they host.

We can continue to write what we like until some pesky politician or judge gets upset and sends a removal notice. We can then alert the rest of the Blogosphere and the mainstream media and draw attention to the alleged defamatory remarks. This will almost always backfire and may well result in more harm to the person complaining, than if he or she had just let sleeping dogs lie. Maybe that is why they call the Blogosphere a democratic space?

I think this also means that if one links to another site that might contain defamatory statements, one will not be liable. One’s service provider may however be asked to take down the link and will have a right to do so.

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