Post in haste, repent forever!

Cautionary tales regarding controversial content published on social media and internet platforms are not new. Offenders face virtual justice presented by the evolving and ubiquitous “cancel culture” that targets anyone whose social media posts offend (even marginally) the court of public opinion. They also face the risk of defamation claims which can be costly to fight and very costly to lose.

With those risks to profile and pocket, why do people still publish potentially harmful or controversial content on social media platforms? Is freedom of expression regarded as an absolute (online) right? Does a perception of online anonymity fuel a misplaced and ill-advised bravado amongst keyboard warriors?

Hard questions and no straight answers. Maybe those posting harmful / hateful content have no understanding that posting on social media constitutes publication. If so, a good place to start in understanding defamation is the legal authorities. The Constitutional Court in Le Roux v Dey 2011 3 SA 274 confirmed that the law of defamation is designed to compensate a victim for any publication that injures the victim in their good name and reputation. The court set out the elements of defamation succinctly as: the wrongful and intentional publication of a defamatory statement concerning the wronged party.

As the online environment develops it is the notion of publication that we focus on here. Before the internet, what constituted “publication” was limited generally to hardcopy print. But with the advent and evolution of electronic communication, the internet and social media, examples meeting the requirement of “publication”, as set out in the Le Roux case, will self-evidently include email but also:

• posts on any social media platforms, Instagram; Facebook; Twitter; LinkedIn; and TikTok included;
• WhatsApp messages;
• comments on online news articles; and
• any other publicly accessible medium.

What is even more important to understand is that South African law considers repeating or sharing defamatory content as sufficient to constitute “publication” and, thus, defamation in its own right, even if the repeater or sharer was not the author of the original defamatory post. So just by clicking share, you could be perpetuating the defamation, exposing yourself to a damages claim for defamation or to potential dismissal by your employer. Disciplinary proceedings against employees in relation to their social media activity and online conduct is now well established in our law, as detailed in our employment alerts of 18 November 2019 and 3 December 2019.

With 1.62 billion users visiting Facebook each day (as at 4 May 2020) - and approximately 145 million daily active users on Twitter (as at 30 November 2019), the chances of a defamatory post going undetected are slim – in fact, you have more chance of the opposite result - going viral. The internet and social media are immensely powerful but so dangerous for the innocent and unwary. Many children have access to electronic devices and social media platforms, and it is so important that children are aware of the grave consequences of irresponsible conduct, consequences that might only be manifest years down the line. Just like an elephant, the internet never forgets.

We should have no sympathy for bigots and online “trolls” – they should get what’s coming to them. But children, young adults and the uninitiated need to be made aware that, no matter how innocently they publish or share something online, that publication could jeopardise their future. The last thing anyone wants, having posted rashly or carelessly, is to be left quoting JK Rowling’s Rubeus Hagrid: “Shouldn’t have said that...I should not have said that…shouldn’t have said that!”.