In today's digital society, social networking sites such as Facebook, Instagram, and X, provide a platform for users to share their thoughts and opinions. However, users often post under the misconception that they can express themselves freely, without legal consequence: this is not the case as the law of defamation, applies equally to digital and traditional forms of communication, and courts are increasingly addressing challenges posed by online defamation.

Under South African law, defamation is defined as the intentional and wrongful publication of a statement that injures another person's reputation. Online defamation, or cyber defamation, includes any harmful statements made through digital platforms.

For illustration purposes, consider the case of John Doe, a small business owner in Johannesburg, who found himself at the centre of a social media storm. A former employee, Jane Smith, feeling disgruntled after being dismissed, posted on Facebook:

"John Doe is a fraud! He scams his customers and exploits his workers. Don't support his business!"

The post quickly gained traction, with dozens of Facebook users liking, sharing, and commenting in agreement. Some users added their own accusations, while others used emojis such as thumbs-up and fire flames to show their support. The post became part of a larger thread where Jane continued to allege unethical behaviour by John, further damaging his reputation.

According to DP van der Merwe in Information and Communications Technology Law (2021), the right to freedom of expression, as guaranteed by Section 16 of the South African Constitution, must be balanced against the right to human dignity (Section 10). Whilst individuals have the right to voice their opinions, this right is not absolute and does not extend to defamatory or malicious statements.

A crucial aspect of defamation law is that anyone who repeats, confirms, or draws attention to a defamatory statement can be held responsible for its publication, and thus be held liable for defamation. This means that users who "like," "share," or comment in a way that affirms defamatory content may also be legally responsible.

In Isparta v Richter 2013, the court found that a person who is tagged in a defamatory post and fails to remove it can be seen as associating with the defamatory statement and resultantly, can be held liable. Similarly, in Dutch Reformed Church Vergesig Johannesburg Congregation and Another v Sooknunan t/a Glory Divine World Ministries 2012, the court held that the creator of a Facebook page is responsible for defamatory comments made on their timeline, thus holding them accountable for defamatory content posted by others.

Emojis have also become a popular means of communication, but their interpretation in defamation cases is complex. In John's case, users who commented using angry or warning emojis could argue that their intent was ambiguous. However, if an emoji was used in the context where it reinforced a defamatory claim, it could be interpreted as supporting the statement. Courts thus consider the totality of the conversation, and a string of comments with emojis could amount to defamation.

John Doe, realizing the damage to his reputation, sought legal action. He sought an interdict to remove the defamatory content and prevent further postings. While courts are cautious about granting interdicts that might infringe on free speech, they may do so in exceptional cases. Additionally, John sued for damages, as defamatory statements on social media can have severe financial and reputational consequences.

As online interactions evolve, so too does the law’s approach to defamation, holding not only the original poster accountable but also those who engage with defamatory content. Whether through comments, shares, or even emojis, users can inadvertently expose themselves to legal liability. Thus, it is essential for individuals to be mindful of the content they post and interact with, ensuring that their online expression remains within the bounds of the law.

Written by Alexis van Eeghem.

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This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys & Conveyancers at info@hjwattorneys.co.za directly for advice applicable to your specific matter.