“I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified. Remember I see the broken hearted faces of your girls every day. Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to take responsibility for the consequences of your own behaviour? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, do you still see a man?”That’s the relevant portion of a Facebook post which the High Court recently ordered its author to remove, finding that she had acted out of malice. The judgment is an important one, breaking new legal ground and confirming that defamation is as much unlawful in the virtual world as it is in the physical one.
What can you safely say online?In broad terms, publication of anything proved to be defamatory (damaging to another’s reputation) is presumed to be both intentional and wrongful. That puts the onus on you to prove lawful justification via one of the legal defences – such as “mistake”, “lack of intention”, “consent”, “fair comment”, “truth and public benefit”, or “privilege”.
Note in particular that just because something is true, that doesn’t entitle you to tell the world about it – if it is defamatory you must also show that it is “to the public benefit or in the public interest that [it] be published”.
The high cost of getting it wrong
You risk not only being interdicted and having to bear the resulting legal costs (as happened to the author of the post in this case); you could also face a claim for damages, and perhaps even criminal charges. And social media comes with a new and particular danger – once you post something online, it tends to live on in cyberspace forever. Anything that captures the online community’s attention will be re-posted, re-tweeted, and generally disseminated beyond any chance of recall. If it goes viral, the resulting damages claims could be massive.
Adjusting your privacy settings may give you a degree of protection, but there are no guarantees so rather err on the side of caution.
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