by Paul Jacobson (@pauljacobson) In the recent Isparta v Richter and Another case, Acting Judge Hiemstra found that the first defendant’s comments were defamatory. Reading the judgment, you may be forgiven for forgetting to ask whether the second defendant is also liable, particularly given that the second defendant was only tagged in the offending Facebook posts. Hiemstra’s finding on this question was very brief and, at the same time, pretty profound:

[35] The second defendant is not the author of the postings. However, he knew about them and allowed his name to be coupled with that of the first defendant. He is as liable as the first defendant.

Pretty powerful findingPaul Jacobson

This is a pretty powerful finding. In the context of Facebook it means that, if you are tagged in defamatory content and you don’t do anything about being tagged (or perhaps even mentioned), you could be liable, too. This argument likely extends to other platforms such as LinkedIn, Google+ and perhaps even Twitter.

In the case of Facebook, you can control who can tag you (you can choose to approve any tags before the posts become public). As with Facebook, you can mention LinkedIn users, although it’s not clear whether you can control this and remove tags. It’s the same issue with Google+ mentions.

Of course, on Twitter it isn’t possible to control who @-mentions you. At least on Twitter you can report a tweet as abusive and that may address Hiemstra’s concern that the second defendant “allowed his name to be coupled with that of the first defendant”.

Practical difficulty, if not impossibility

Hiemstra doesn’t seem to take into account the practical difficulty, if not impossibility, of removing these tags or mentions, and it’s not clear what a person would need to do to disassociate him or herself from defamatory comments.

This also links to a debate about what a retweet means: is it an endorsement or, in some other way, a sign of approval? Unfortunately, the trend that has continued to emerged from a number of courts is that —

[a] person who repeats or adopts and re-publishes a defamatory statement will be held to have published the statement

The recent UK McAlpine case highlighted this in the context of Twitter and retweeted defamatory statements, and that approach is probably going to be expanded in our courts as defamation claims based on retweets are heard.

The takeaway here is that you should carefully consider whether to reshare or retweet any material which could be regarded as defamatory, unless you are comfortable that you have a defence to a defamation claim available to you in the event you are sued.

Apologising can help

Fortunately, an adequate apology can help you reduce your exposure to liability or perhaps even avoid it entirely. This depends almost entirely on the nature of the apology. Hiemstra made several references to apologies including the following [Media24 link added]:

[40] An apology in the same medium (Facebook) would have gone a long way towards mitigating the plaintiff’s damages. In fact, there is much to be said for the proposition that orders for damages for defamation are inappropriate. Nugent JA, in a minority judgment in Media 24 v Taxi Securitisation referred to a 1995 report of the New South Wales Law Commission, referred to by Willis J in Mineworkers Investment Co (Pty) Ltd v Modibaneu which called damages as the sole remedy for defamation “remedially crude”. Nugent JA said in para [72]: “As it is. an order that damages are payable implicitly declares that the plaintiff was unlawfully defamed, thereby clearing his or her name, and there can be no reason why a plaintiff should be forced to have damages as a precondition for having the declaration.”

An apology to the plaintiff, or a retraction in writing, in the same forum that the offending statements had been made, also clears the name of the plaintiff

In the Isparta case, the defendants didn’t apologise for the defamatory comments and seemed to maintain their entitlement to comment as they pleased.  Hiemstra wasn’t persuaded by the defendants’ “specious technical defences” and I suspect tha,t if the defendants had made a timeous and sincere apology, the finding would have been different.

In the 2009 Supreme Court of Appeal decision of Tsedu and Others v Lekota and Another, Judge of Appeal Nugent made the following comments about an apology that was made prior to the trial at a lower court:

I do not think much weight can be attached to that retraction and apology, coming as it did on the eve of a trial that was destined in any event to vindicate the respondents. One might expect that the appellants, having retracted and expressed their ‘sincere regret’, would then have turned their attention to the monetary value of the offence that they had caused, but that was not to be. Instead they persisted in compelling the respondents to find their full vindication in the courts. There has been nothing, in my view, that the appellants have done to mitigate the harm that they caused, and the respondents are entitled to a full measure of damages.

What the judges seem to be saying is that, for an apology to be effective in helping a party reduce exposure to liability, the apology should probably be sincere and essentially amount to a clear retraction of a previously defamatory comment. Equivocal apologies may be insufficient and, if you are going to apologise, do it sooner rather than later. Apologising on the steps of court may not be convincing to a judge.

Obviously, your particular facts may require a different approach (and you really should talk t your lawyer about this in the context of your specific case — this really isn’t legal advice!).

Think again about resharing that

A common and persistent misconception about social media is that the ordinary legal rules don’t apply.

I still remember the incredulous tweets around the time of the Oscar Pistorius bail application from people who were astonished that a tweet can be defamatory. How often have you retweeted something amusing or even outrageous without a second thought about the possibility that you could be sued for that simple action?

As the law stands, both in South Africa and elsewhere, this is a very real risk, so the next time you see something scandalous and are about to reshare it, think again.

Paul Jacobson (@pauljacobson) is the founder and director of Web•Tech•Law/CC BY-SA 2.5


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