Saturday, 14 April 2012

Online defamation



Online defamation

Internet usage increasing exponentially

Given the vast amount of people using social media, and the increase in internet penetration, a legal query that is emerging more and more regularly is the following: how do I deal with online defamation?

At first blush it appears a relatively straight forward enquiry into the law of defamation. However, given the unique nature of the internet, the method in which one deals with this type of issue will depend on the nature of the defamation (how serious is it?) and the person or legal entity alleging defamation (individual or large corporate entity). I will expand on the reasons for this below.

It is becoming clear that social media is becoming a primary form of advertising and marketing for businesses and this trend is set to increase in 2012.  Social networks appear to have an endless pit of resources as shown by Facebook’s recent one billion dollar acquisition of Instagram. The ever increasing need for business to “go online” has spawned a new field of internet reputation management and advertising companies creating social media experts to manage online communication.

South African Defamation in a nutshell

The law of defamation in South Africa is based on the actio injuriarum, a Roman law remedy concerning liability for injury to personality. It is available for an intentional, wrongful act which constitutes an aggression upon person, dignity or reputation.

In order to have a valid cause of action, a plaintiff must show that the defendant, (a) published, (b) defamatory matter, (c) referring to the plaintiff.  Once the plaintiff has proved the existence of these elements, three presumptions arise. 

Firstly, that the publication was unlawful.  Secondly, fault or intention on the part of the plaintiff, and thirdly that the plaintiff suffered damage. 
                                  
In the ordinary course, a defendant in a defamation case has several defences open to it.  These are truth for the public benefit (published material must be true and in the publics’ interest to receive this material), fair comment (i.e.: editorial comment or a satirical piece) and privilege (i.e.: where there is a moral or social duty to publish the defamatory matter, and the recipient has a similar interest or duty in receiving it).

Online defamation

Simply, online defamation is the publication of defamatory statements on the internet.  Typically, these defamatory comments would appear in a social network environment (Facebook or Twitter) or on a website, blog or online forum.

As alluded to above, a key practical consideration is the nature of the defamation and the person or corporate entity concerned.  If the defamation attacks one in such a manner that the defamed person will suffer severe damage, it is probably worth enforcing the applicable legal rights.  A good example of this is former professional New Zealand cricketer Chris Cairns or Namibian journalist John Grobler.  In these two matters, the defamation concerned their professional integrity and the respective awards in their favour effectively cleared their names.

Conversely, a large corporate may have a different approach to certain defamatory comments.  This is because legal action will often exacerbate the problem and result in more harmful PR and online commentary. The fluid and dynamic nature of the internet means that, for example, if an allegedly defamatory statement is published on (for example) a message board of a corporate entity, the damage may already be done.  Pursuing action against an aggrieved customer will, in some instances, result in more harm than good – it is critical to evaluate the allegedly defamatory statement.  Deleting these messages or comments is probably not a good idea either – this will be picked up by the aggrieved and pointed out to all who wish to listen.  Again, this may result in more harm than good.

Each matter is obviously distinguishable on its own facts, but as a rule of thumb, where online defamation is concerned, discretion is often the better part of valour.  The traditional nature of legal remedies (i.e.: procedurally based and time intensive) means that a social media or internet comment may be long forgotten by the time the legal action has run its course. Many internet management specialists advise that, where possible, further conflict should be avoided and a “damage control” philosophy adopted. In most instances, I would agree with that.

Solving this type of dispute amicably is not always possible and in these situations the individual or business should probably seek the advice of an attorney to evaluate the pros and cons of any potential legal remedy.  Practically, when dealing with this type of issue, if one feels compelled to respond do so in a calm, objective manner.  Leave emotion out of it.  Also, one may consider approaching the website owner (the comment may be against terms of use), the Internet Service Provider of the user, or you could report a complaint with Google (if the comment is offensive, the website may be removed from Google searches index).

If the defamation is such that a response is warranted to protect personal or business reputation, it may be worthwhile contacting an attorney with practical experience to assist in formulating any responses and advising on the prospects of formal legal action. 

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