SOCIAL MEDIA LAW: TO POST OR NOT TO POST?

The advent of social media and networking has taken the entire world by storm to the extent that there is now over one billion people using Facebook on a daily basis and over five hundred million registered Twitter accounts.

The Constitution provides that every person in South Africa has the right to equality, human dignity, freedom of religion, opinion and belief, and freedom of expression. However, while protecting these rights is a constitutional imperative, ignorance of the law is no excuse and therefore in today’s day and age, it is now necessary, more than ever, not only to educate the public about their legal rights and obligations, but to educate them about the risks and consequences of publishing, posting and/or tweeting on social media networks.

While social networks on the internet don’t actually form part of a real or corporeal world, they reside in cyberspace and it is important to understand that, in South Africa, whatever laws apply to the real and corporeal world are also applicable to the world of cyberspace, the world wide web, and by extension social media and networks.

Secondly, one must understand that the concept of online anonymity does not exist and is in fact a myth. Every action or step taken online is recorded, falls within the public domain and once taken cannot be deleted or altered by choice. This is relevant when considering how one should use social media networks because any step taken online is automatically recorded in a public domain and may constitute legal acts which may or may not carry risks and obligations.

Any person’s actions, statements and even omissions may lead to them being held legal liable.

DEFAMATION:

When someone spreads a rumour or makes statements about someone which places the person in a compromising or bad light, it is possible that such rumours or statements could be defamatory. Defamation is basically any conduct which damages someone’s public reputation.

South African law protects a person’s reputation against unjustified publications, whether oral or in writing, of anything which could damage a person’s reputation by allowing the person to either claim an amount as damages or force them to stop their conduct (interdict).

Remembering that the laws of the real world apply to the world of cyberspace, defamation can occur over social media networks. Accordingly any statement, publication, post and/or tweet made on a social network may form the basis of legal liability.

It is very important to note that the potential for legal liability doesn’t only apply to the person who initially made the statement. South African law provides that every person that forms part of the chain of publication of a statement can be sued or held responsible for the content contained in such a statement. It is therefore possible to hold a person responsible for re-publishing, sharing or re-tweeting any statement which they know or may reasonably know is defamatory.

A recent example of this occurred where a woman from Pretoria and her husband were ordered by the court to pay R 40 000.00 (forty thousand rand) in damages to the husband’s ex-wife after the couple had made defamatory statements about her on Facebook. In this particular case the husband was merely tagged in his wife’s defamatory posts and the court found this to be sufficient for him to be coupled in the offence of defamation.

Defamatory statements and acts are an daily occurrence on social networks and the public should be cautioned to refrain from making any statement which is potentially defamatory, keeping negative feelings or remarks to themselves and using the full force of the law to defend anyone who is a victim of such behaviour.

TROLLING:

In the world of cyberspace this is now becoming a common occurrence. A “Troll” is a person who deliberately and continually posts provocative or abusive messages to someone which are intended to cause pain, distress disruption and argument. In basic terms a “Troll” can be described as an online bully who feels fulfilment from other people’s pain or distress.

As of 27 April 2013 new legislation has been introduced to protect people from the acts of a “Troll”, among other things. This legislation is known as the Protection of Harassment Act and affords every person the right to initially have an order directing a service provider, such as a social network or cellular network, advise their client to stop the harassment, and failing this a final order can be made forcing the network to hand over the details of the harassing person so that further civil and criminal action may be taken against him or her.

If you are experiencing “trolling” the first step is to report the incident to the service provider. If reporting incidents doesn’t provide a remedy, then you may approach the court for further relief in terms of the Protection of Harassment Act. Below are a few links for social networks where you can report such incidents:

How to report abuse on Facebook – http://www.facebook.com/help/?page=247013378662696

How to report abuse on Twitter – https://support.twitter.com/forms/abusiveuser

How to report abuse on LinkedIn – abuse@linkedin.com

How to report abuse on YouTube – http://www.youtube.com/yt/policyandsafety/

CONCLUSION:

Our world is constantly changing, with it our technology and as a consequence our lives and society are affected by this ever growing change. It is clear that we not only need to educate the public of what not to do, but it is also imperative that we teach them how to protect themselves from the harms of using social media networks

NUNO PALMEIRA

About Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.

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