Wednesday, 20 June 2018

Civil and criminal liability for comments posted on social media

South African model and television presenter Shashi Naidoo has come under fire for comments made on Instagram.  Naidoo referred to Gaza as a “sh%$ hole”.  The posts were swiftly deleted, and Naidoo has apologised.

Although every person has the right to freedom of expression, this right is weighed up and measured against other competing rights – such as the right to dignity and the right to privacy.  Free speech is certainly not absolute.

A person may be both criminally and civilly liable for posts made on social media.  From a criminal perspective, in terms of crimen injuria, to be found guilty, a court must be satisfied beyond reasonable doubt that the perpetrator intentionally and unlawfully seriously impaired the dignity of another.   

Further, the offence of criminal defamation, although criticised as chilling free speech, still operates in South Africa.  In the 2008 matter of Hoho v The State, a bench of five judges on the Supreme Court of Appeal (SCA) was asked to consider the relevance of criminal defamation.  Ultimately, after weighing up freedom of expression versus human dignity, the SCA decided that criminal defamation has not been abrogated by disuse and is still relevant. More recently, in Motsepe v S, the North Gauteng High Court in Pretoria confirmed that in its view, the “crime of defamation is not inconsistent with the constitution” and that “even though the defamation crime undoubtedly limits the right to freedom of expression, such limitation is reasonable and justified in an open and democratic society and consistent with the criteria laid down in Section 36 of the Constitution”.

From a civil perspective, 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). 

In Naidoo’s case, it is unlikely any person will have a civil defamation claim against her given that the posts referred to a place in a derogatory fashion, and not a particular person. Moreover, from a criminal perspective, criminal defamation will not apply because it is unlikely any person's reputation will be impaired enough to satisfy the requirements for this offence. In terms of crimen injuria, the offence is typically in relation to the impairment of a particular person’s dignity in a serious way – for example, a racist outburst directed at a person (i.e.: Penny Sparrow).  In my view, even though the post is ill-conceived, it is unlikely to cause the serious impairment of dignity required to an individual (or group of persons) for this offence.

Often, the excuse is used “I didn’t post the offensive material”, or “my Instagram account was hacked” or something similar.  This is akin, at times, to a person saying to his high school science teacher – “the dog ate my homework”.  Unless there is evidence to support this type of defence, it will usually fail.

Consequently, in my view, it is unlikely that Naidoo’s social media post will result in anything more than negative publicity (or is all publicity good publicity?) – however, and hypothetically, if the matter went to court and the defence was that “someone else posted it”, then evidence must support that contention. The onus will be on the person alleging the defence to show it is reasonably possible.  If a "someone else did it" version is accepted, the person who is responsible for the social media account will likely be able to wriggle free of criminal action (lacking the required intention), but may not escape all action, as negligent publication of defamatory material may still result in civil action.


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