By Sherika Maharaj
A storm is raging
Social media has taken the communications world by storm. There has never been an easier and more accessible means of interacting with a worldwide audience than now. The internet and social media sites are becoming breeding grounds for potential defamatory conduct amounting to online defamation.
The arrival of Twitter
Twitter Inc was founded on 21 March 2006 and is marketed as a free application that lets you connect with people, express yourself and discover more about the thing you love. It ‘is an online social networking service that enables users to send and read short 140-character messages called “tweets”. Registered users can read and post tweets, but unregistered users can only read them.’ (http://en.m.wikipedia.org, accessed 10-4-2015.)
In the words of Pierre de Vos posted on his blog ‘Constitutionally Speaking’ (Pierre de Vos ‘Defamation and social media: We have moved on from Jane Austen’ 27-2-2013 (http://constitutionallyspeaking.co.za, accessed 2-4-2015)) ‘There is something about internet websites and social media platforms like Facebook and Twitter that seem to bring out the worst in people. Otherwise reasonably decent people who might well carefully weigh their words … can become raving hatemongers and irresponsible tattletales on these platforms.’
They coined the phrase ‘twibel’
Defamation law in the United States is referred to as libel law. With the increasing amount of litigation surrounding twitter posts the American public have coined the phrase ‘twibel’.
In an article published in the Los Angeles Times (Carina Knoll ‘Singer-actress Courtney Love wins landmark Twitter libel case’ 24-1-2014 Los Angeles Times (http://articles.latimes.com, accessed 2-4-2015)) reported that a Los Angeles jury determined that the musician did not defame her former attorney in a Tweet. The Tweet was posted as follows ‘“@noozjunkie I was … devastated when Rhonda J Holmes Esq of San Diego was bought off @fairnewsspears perhaps you can get a quote,” Love tweeted in June 2010 under @CourtneyLoveUK.’ ‘Dubbed “twibel”, the civil suit seeking $8 million was filed by Rhonda Holmes, who had once acted as Love’s fraud litigation attorney. The singer-actress filed her own complaint against Holmes, claiming legal malpractice.’
South African law: Common law definition of ‘defamation’
The Constitutional Court handed down judgment in Khumalo and Others v Holomisa 2002 (8) BCLR 771 (CC) and held at para 17 as follows: ‘The law of defamation in South Africa is based on the actio injuriarum, a flexible remedy arising from Roman Law, which afforded the right to claim damages to a person whose personality rights had been impaired intentionally by the unlawful act of another. One of those personality rights, is the right to reputation or fama, and it is this aspect of personality rights that was protected by the law of defamation’.
The court held a para 18: ‘At common law, the elements of the delict of defamation are –
(a) The wrongful and
(b) Intentional
(c)Publication of
(d) A defamatory statement
(e) Concerning the plaintiff.
It is not an element of the delict of common law that the statement be false. Once a plaintiff establishes that a defendant has published a defamatory statement concerning the plaintiff, it is presumed that the publication was both unlawful and intentional. A defendant wishing to avoid liability for defamation must then raise a defence which rebuts unlawfulness or intention’.
Mickle v Farley (2013) NSWDC 295 (29-11-2013)
In one of the first judgments of its kind in Australia involving social media, a defendant who posted defamatory statements on Twitter and Facebook was ordered to pay $ 105,000 in damages plus costs. The plaintiff was appointed as acting head teacher in place of the defendant’s father who had taken leave from the position due to ill health. The defendant had 63 followers on twitter and posted defamatory and abusive Tweets and messages about the plaintiff. The court noted that the defendant, Mr Farley, had a grudge against the plaintiff. The plaintiff alleged that the comments had a devasting effect on her. Elkain DCJ stated as follows: ‘When defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.’
The United Kingdom follows:
The first British twibel case to go to trial in the UK involved former town Mayor, Colin Elsbury, who inaccurately claimed that Eddie Talbot, his political rival, ‘had to be removed by police from a polling station’ in a Tweet during a 2009 city council by-election. The Tweet stated, ‘It’s not in our nature to deride our opponents however Eddie Talbot had to be removed by Police from the Polling Station.’ The High Court in Cardiff ordered Elsbury to pay £ 3 000 in compensation, legal costs and to apologise to Talbot via Twitter’ (‘Former Mayor becomes first Briton ordered to pay damages for Twitter libel’ 11-3-2011 Daily Mail (www.dailymail.co.uk, accessed 2-4-2015)).
In another decision, cited as McAlpine v Bercow (2013) EWHC 1342 (QB) the High Court of justice, queens bench division Mr Justice Tugendhat presided over a hearing to determine the meaning of the words complained of in the libel action (the Tweet) and whether they are defamatory of the claimant. The question of its meaning was tried separately as a preliminary issue. If it was found that the Tweet was not defamatory of the claimant then that would be the end of the action. If it was found that the Tweet was defamatory then the case would proceed to the assessment of damages unless the parties reach an agreement.
The Tweet read ‘Why is Lord McAlpine trending? *innocent face*’. The judgment explains further that the Twitter website has a screen with a box headed ‘trends’. It lists names of individuals and other topics. Twitter explains that this list is generated by an algorithm that identifies topics that are immediately popular, rather than topics that have been popular for a while or on a daily basis, to help you discover the hottest emerging topics of discussion on Twitter. The defendant accepted that the question in her Tweet implied that the claimant was trending on 4 November. The defendant is well known as the wife of the speaker of the House of Commons. The claimant is a former deputy chairman of the conservative party and a former party treasurer and was a close aide to Margaret Thatcher during her time as Prime Minister.
The judge concluded that the Tweet meant in its natural and ordinary defamatory meaning that the claimant was a paedophile who was guilty of sexually abusing boys, or alternatively, he found that the Tweet bore an innuendo meaning to the same effect. The court in arriving at this conclusion considered the following:
South Africa: Head on its heels: H v W 2013 (5) BCLR 554 (GSJ)
Judge Willis dealt with an application by the applicant who sought an order against the respondent, inter alia, interdicting and restraining the respondent from posting any information pertaining to the applicant on Facebook or any other social media. The respondent was the author of a posting on Facebook. The applicant complained that the posting in question published information that portrayed him as a father who did not provide financially for his children and would rather go out drinking than caring for his family and a person who has a problem with drugs and alcohol. It was stated that: ‘We have ancient, common law rights to both privacy and freedom of expression. These rights have been enshrined in our Constitution. … It is the duty of the courts harmoniously to develop the common law in accordance with the principles enshrined in our Constitution’.
The court ordered the respondent to remove all postings that she had posted on Facebook or any other site in the social media that referred to the applicant.
It is interesting to note that no claim for damages was brought by the applicant as was done by our Australian, British and American counterparts above.
Conclusion
As more of these ‘twibel’ cases are receiving media coverage both internationally and locally, I submit that people will be more wary and think twice before speaking their minds on a public platform specifically on social media sites. It is clear that no one’s conduct can escape liability and people have to be accountable for their words. An article published in the Journal of High Technology Law by Ellyn M Angelotti states as follows: ‘Since Twitter enjoys immunity from liability for defamatory content under Section 230 of the Communications Decency Act, the best option for resolution may not be to focus on Twitter as an organisation solving the problem, but rather to look to the community itself for a solution’ (EM Angelotti ‘Twibel Law: What defamation and its remedies look like in the age of twitter?’ (2013) 13 Journal of High Technology Law 430). The author’s point of view is indeed food for thought.
Sherika Maharaj Ndip (DUT) LLB (Unisa) is an attorney at Legal Aid in East London.
This article was first published in De Rebus in 2015 (May) DR 28.
