Monday, 6 February 2017

Naming and shaming on Facebook and social media

A recent Pretoria High Court judgment has vividly illustrated the dangers of naming and shaming on Facebook.

In Hechter v Benade [full judgment - PDF], decided on 5 December 2016, the court ordered the defendant to pay R350 000.00 in damages for defamation, plus legal costs and interest.  

The dispute centered around two neighbours, briefly, the facts are as follows: the plaintiff complained to the body corporate of the Centurion estate they both lived in, alleging that his neighbour and her husband were keeping chickens and rabbits that smelt and made a noise.  The plaintiff is alleged to have taken several photographs of the conditions the animals were being kept under.

As a result of the complaints (and photos), the defendant retaliated in typical 21st century style – an expletive-filled rant on social media (Facebook in this matter).  The Defendant took a photograph of the plaintiff and posted it on Facebook calling him a ‘perverse neighbour, an idiot and an ugly piece of shit’ – also insinuating that the plaintiff was a ‘peeping-tom’.

As a result, and in addition to the damage to his reputation and dignity, the plaintiff claims to have lost business, had his life threatened, suffered from depression and incurred unnecessary costs (including legal fees and moving expenses. He moved to another unit in the same estate, but in an ironic twist of fate, the defendant moved right next door to him again, and it appears from the full judgment that they are - or were at the time of hearing - still neighbours).

The court ultimately found in the plaintiffs favour; it once again confirmed the basic principles relating to defamation – the plaintiff need only prove, judged by a reasonable person, that the offending material was published, referred to him (the plaintiff), was defamatory (towards the plaintiff) and caused harm (reputation and dignity).

Of course, there are several defences open to the defendant -  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). Additionally, if the defendant is a news publication then it has an additional defence – the publication must be reasonable in the circumstances.

None of these defences appear to be applicable to the matter and the defendant’s rant looks to have cost her at least R350,000.00.

How can you avoid this happening to you?  Think three or four times before naming and shaming on Facebook.  There are a plethora of groups and communities on social media where sensitive information is often posted without thought, and naming and shaming takes place on a weekly basis.  Keyboard warriors ought to be careful, and this judgment merely confirms that.

Some basic advice:

  • Do not post rants on social media when angry and emotional.  Most important, avoid posting anything controversial when intoxicated;

  • Where giving reviews or commenting critically about others, stick to the facts – be objective and neutral.  Freedom of speech is important in our law, but it is not absolute. Is what you are saying true?  Is it in the interests of others to receive this information?

  • Do not post personal information about others on Facebook without their consent – it may be defamatory, and arguably, it may be in breach of the Protection of Personal Information Act;

  • Once you are comfortable posting the critique, rant or negative comment on Facebook, before you post it, think this – would I be happy to say this to a stadium full of people?  If the answer is still yes, then it may be appropriate to post it – that said, it may still land you in trouble, so often the best advice is to stay off social media when in a dispute with someone – resolve it using the traditional channels and means where possible or consult with an attorney.

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