In the twenty-first century, one no longer needs to have a newspaper column or radio show to have a voice and to publicize an opinion. Blogs, websites and social media pages have given the ordinary citizen a platform. However, there are dangers in using these platforms too recklessly, for example, the risk of being accused of defamation.
Defamation is committed when someone publishes to a third person words containing an untrue imputation against the reputation of another. The medium of publication is immaterial. Traditionally, our courts have seen defamation cases between prominent public figures and newspapers, radio stations or other news outlets. However, it is natural to surmise that as social media becomes increasingly popular, there will be more court cases concerning statements made on such platforms.
In an attempt to adapt to the evolving technology and to our cultural shift of becoming more social online, the Defamation Act (“the Act) was amended in 2013 to include “electronic communication” as a means of disseminating defamatory material. The Act defines “electronic communication” as a communication of information in the form of data, text, images or sound (or any combination of these) by means of guided or unguided electromagnetic energy, or both. The Act includes “the Internet” as a form of electronic communication.
Though technology has changed, the law surrounding defamation has remained fundamentally the same as it relates to what constitutes defamation, the defences thereto and the available remedies.
In determining whether or not a social media post is defamatory, we can ask these four questions:
- Is the information in the post factually inaccurate?
- Would the post tend to lower the reputation of the Claimant in the estimation of right-thinking members of society?
- Would the post tend to cause others to shun or avoid the Claimant?
- Would the post expose the Claimant to hatred, contempt or ridicule?
It is important to note that the Act stipulates that in the case of defamatory matter published on the Internet, the limitation period shall be within two years from the date upon which the defamatory statement is first published on the Internet or on the date upon which it is first capable of being viewed or listened to through the Internet, whichever is later. This is identical to the limitation period imposed for defamatory matter published via more traditional media.
However, the court may exercise some leniency with regard to the limitation period, as the Act permits a person claiming to be a victim of defamation to apply for an order extending the limitation period.
The Act outlines the defences to defamation – three of which are outlined below. The Act makes it clear that this is not at all exhaustive and a Defendant may raise a defence that is not found in the statute.
The defence of truth shall succeed if the Defendant proves that the imputations were true, or not materially different from the truth.
This defence requires that a Defendant prove three things:
- The Defendant published the matter merely in the capacity of a distributor who is subordinate to the publisher of the matter, or an employee or agent of the distributor;
- The Defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and
- The Defendant’s lack of knowledge was not due to any negligence on the part of the Defendant.
The Act goes further to say that this defence is not available to a person who knows, or ought to have known that the matter was defamatory but proceeded to publish, or to a person who fails to remove the defamatory matter promptly after it has been brought to his attention.
This defence is most commonly used by bookstores, newsvendors and various service providers. In applying this defence to the modern age of social media, one might argue that unknowingly retweeting or sharing a defamatory post would not cause someone to be liable in defamation, provided that the sharer’s lack of awareness of the defamatory nature of the post was reasonable.
This defence applies if the defamatory remark was a comment on facts within the bounds of fairness on a matter of public interest. This is especially applicable as social commentary on social media is quite commonplace.
Under the Act, the remedies available to a defamed person include (but are not limited to) damages and correction. Damages are a sum of money calculated by the court based on the unique circumstances of the situation, while correction is where the court mandates that the Defendant publish a correction of the defamatory statement.
Social media isn’t an imaginary world inside our phones and tablets. We are interacting with real people and it is important to exercise caution when sharing material that relates to others, lest we be served with a defamation suit because of a Facebook post.