Think before you post: Avoiding liability in the age of social media

by Trudie Broekmann, Broekmann Attorneys

In 2015, Jennifer Connell from Manhattan, NYC was labelled the #auntfromhell in the course of a media firestorm for suing her cousin’s 8-year-old son over an over-enthusiastic hug which caused her to break her wrist.  News of the lawsuit was posted on social media and went viral resulting in a flood of hateful comments about Connell, many of which can still be found on the Internet.  Connell was eventually forced to appear on CNN in order to set the record straight.  She explained that she was suing her cousins’ homeowners’ insurance for her medical expenses, which she could not afford.  Connell was, unfortunately, obliged to name an individual in the court papers, but it did not reflect any breakdown in her relationship with her nephew.

The story of Jennifer Connell, while being an incident from the US, is an extreme example of the power of social media and how one post can irretrievably mark your reputation.

As we are doing more communicating in writing than ever before, we need to remind ourselves that there is a difference between a throwaway verbal comment and the same comment typed out and published online.  The difference lies in the far-reaching consequences that online posts can have – particularly under South African law.  Take it from people whose online comments have backfired such as Penny Sparrow and Peter-Paul Ngwenya – some things you just cannot take back.

Online shaming is a form of social media vigilantism in which targets are publicly humiliated for private behaviour. Proponents of shaming see it as a form of online participation that allows hacktivists and cyber-dissidents to right injustices. Critics see it as a tool that encourages online mobs to destroy the reputation and careers of people or organizations who have made perceived slights.

While the right to freedom of expression is afforded to all South Africans, it is a limited right and it operates in tandem with the rights to dignity and privacy.  This is a major difference to the American interpretation of freedom of speech.  Freedom of speech in the USA is limited to a far lesser extent than here in South Africa.  It has also been declared by the Supreme Court to be a “preferred right,” so if you see an American letting rip on social media, please take into account that “hate speech,” which is prohibited in South Africa, is not illegal in the USA.  Here in South Africa, your right to freedom of expression exists only to the extent that it does not infringe on the dignity and privacy of another person.

Before you share an opinion (or even someone else’s opinion) online, beware of your potential liability.  Each of the following could happen to you:

Crimen injuria charge

You could be charged with the criminal offence of crimen injuria and land up with a prison sentence.  Crimen injuria is the act of unlawfully, intentionally and seriously impairing the dignity or privacy of another person.  Common examples of crimen injuria include stalking, threats of harm, publishing a person’s private information without their consent or ridiculing someone’s ethnicity, sexual identity or religious affiliation.  If a person is found guilty of crimen injuria, they will have a criminal record.

Recently, a Magistrate’s Court convicted Peter-Paul Ngwenya for crimen injuria for using the racially charged “k-word”’ to refer to another person in a text message.  The magistrate did not accept his argument that the use of the term between black people was acceptable.  The magistrate found the use of the word to show the ultimate disrespect, regardless of the race of the speaker.  At the time of posting this blog entry, Ngwenya has not yet been sentenced.

Penny Sparrow was also convicted of crimen injuria for her Facebook post describing black people as “monkeys” in the context of a rant about littering on the beaches.  She was fined R5000 and a prison sentence of two years – suspended for five years – was imposed along with an order to make a public apology.  The Equality Court also ordered her to pay R150 000 to the Adelaide and Oliver Tambo Foundation.

Damages claim based on defamation

Recently, former Finance Minister, Trevor Manuel, was awarded R500 000 after a successful claim for damages from the EFF for false accusations made against him.  Defamation is a statement that would harm the reputation or decrease the respect for another person in the eyes of an objective, reasonable person and which is made known to at least one other person other than the defamed individual.  An Australian mom was recently reported making a tearful apology to a man she had shamed on Facebook – accusing him of being a child predator after it appeared he was taking photos of her young children.

There are certain defences available that would justify the publication of a defamatory statement. These are: that the statement was true and in the public interest; fair comment (the statement was an opinion or comment, based on true facts, fair and related to a matter of public interest); or made in a privileged setting (this typically refers to what members of Parliament say during parliamentary proceedings and the media that report it).

Protection order under Protection from Harassment Act

In a situation where the online comment amounts to cyberbullying, or, as the 2011 Protection from Harassment Act calls it, “harassment,” the victim can approach the court for a protection order against the perpetrator.  Harassment includes any communication that causes psychological or economic harm to the victim.  The court merely has to see evidence of harassment at face value in order to grant the victim the protection order.

Risk of disciplinary action by employer

Your employer is likely to have a policy on online activity that outlaws anything that brings the employer into disrepute – even when you were not at work while posting and even when the comment is made in your personal capacity, so a comment that your employer finds embarrassing may lead to disciplinary action or dismissal.

 Avoiding liability

Humility is your best protection against liability for inappropriate online communication.  Before publishing a critical comment on social media, go through a process of “doubting” your own wisdom, appropriateness, whether you have all the facts, and try to see the comment from the perspective of someone who may feel slighted by what you are saying.

Humility should also prevent all of us from joining internet witch hunts or typing any response we would feel uncomfortable saying to a respected stranger’s face.

That said, the South African Constitution defends your right to be controversial – it is not about making bland statements, it is about taking the human rights of others into account and balancing it against your right to freedom of expression.

“… freedom of expression is one of a web of mutually supportive rights in the Constitution… The rights implicitly recognise the importance, both for a democratic society and for individuals personally, of the ability to form and express opinions, even when those views are controversial.” (from the Constitutional Court judgement in SANDF v Minister of Defence and Another 1999)

As shown in the above examples, it is worthwhile checking the context of whatever you are posting, sharing or retweeting online.  Make sure that you understand the content of the material exactly and check that potentially slanderous material is backed up by clear and incontestable evidence.  Be especially careful when posting or sharing anything that could be read as being hurtful to another gender, sex, ethnicity, language, age, religion, race, sexual preference or someone with a disability, HIV positive status etc.  Check your online profiles regularly to ensure you have not been linked to any material containing anything defamatory.

Needless to say,  things like posting revenge porn or doxing (publishing private information on the internet) that can lead to hate messages and death threats, e.g. against the big-game hunter who shot Cecil the Lion, can get you into serious trouble.



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