Social media has become a platform where people can share their opinions and various ideas, by the push of a button. With controversial tweets from politicians to the average person on the street, everyone has the opportunity to provide their opinion to the world.

Although this tool of communication has become one of the most useful communication and marketing tools, it has become a dangerous place where people share and like posts drafted by others without thinking about the repercussions of their actions.

Social media has opened a new platform for cases of defamation, infringement of privacy, dignity, discrimination, and even dismissal from the workplace, where comments have been made against companies and individuals. This is not reserved to comments made, but includes the sharing of someone else’s comment or liking someone else’s posts. The moment you like or share a post, you associate yourself with that person’s view or opinion, and can be held liable for the same infringements as the person who wrote the post or idea.

Unfortunately, there is currently no legislation regulating misconduct relating to social media. The courts therefore have to apply other areas of the law in order to determine whether an applicant has merit in such an instance or not.

The Constitution makes provision in terms of Section 16 for freedom of expression which includes the freedom to impart information or ideas. The Constitution however also makes provision in Section 14 for the right to privacy, which includes subsection (d), the right not to have the privacy of their communications infringed. Posts and tweets and its respective content will therefore be amongst the human rights that will need to be weighed up against each other, considering the merits of each case.

An example of a recent case where the court had to apply other areas of the law to the social media posts that was not just made by the respondents but also shared by various people is the case of Fichardt v Potgieter.^[1]

The respondents posted several negative posts and voice notes on the social media platform Facebook, stating that the applicant owes the first respondent money, and further insisting that he pay it back. The respondents also referred to the applicant in a derogatory manner, using hostile and defamatory words. All the respondents then proceeded to warn the public against the applicant.

The respondents did not dispute their comments but claimed that it was the truth and therefore in line with public interest. The applicant claimed that, at the time the post was made, it was shared 1315 times by Facebook users. Judge J Loubser held in this case that “there can be no doubt that these words are reasonably capable of conveying to the reasonable reader a meaning which defames the applicant. The only remaining question is then whether the respondents have succeeded in dispelling the wrongfulness of their defamatory statements. The respondents bear a full onus in this regard, and are required to prove, for instance, the truth of their statements or the public interest pertaining thereto.”

The Court held further that the sole purpose of the respondent’s comments was to force the applicant to pay the respondents and therefore, the comments and post cannot be in public interest. The Court therefore made the interim order a final order, and interdicted and restrained the respondents from posting any information pertaining to the applicant or the applicant’s immediate family on Facebook or any other form of social media or other website, and to remove any postings or comments on such postings pertaining to the applicant and/or the applicant’s immediate family on Facebook, or any other social media or website, that it might have been posted to before.

It is clear that the Court will evaluate each case on its own merits, but it will not take a post, comment or sharing of a post or comment on social media lightly, due to the consequences such an action can have on the parties involved.

So, the next time you feel like posting your thoughts, feelings and opinions on social media, or even want to comment of share someone else’s comments or posts, just remember that everyone who contributes to the defamatory or discriminating content of such a post, can be held liable.

• ^[1] (2018) ZAFSHC 99.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.