An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
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:
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?