Article Sample: SA Law

So I found myself, this week, at our local Community Policing Forum meeting. I am the kind of person who views community participation as not much more than an evening with friends or pleasant banter with the cashier at the local supermarket; I had to override my natural isolationist tendencies and make my way there, largely for professional reasons.

The usual suspects, those I imagine you find at all the CPF meetings, gave their reports and feedback from the last half of the year. This included the police, Metro police, traffic, law enforcement, the Victim Empowerment Programme and a couple of other folk. Statistics were shown, graphs were displayed, and backs were thumped. I can't say if it was well-attended, it being my first, though I can say that it seemed a rather subdued group, almost as if comment and discourse was something best avoided for…well, societal natural selection does have a way of weeding out the talkers and the thinkers, much to our detriment. It wasn't a forum as much as it was an audience.

No, the reason I drove out to join the hubbub of community participation was because of the key-note speaker that evening. Ms. Olivia Smith, from Michalson's Attorneys in Cape Town, was going to present a talk on social media and what South African law has to say about it. As a person who uses social media for personal, professional and nefarious means, this struck me as something that I should beef up on. I was surprised that I hadn't already, but then I hold the view that laws handed down from some elected presence from on high is not quite the same as right and wrong and what we lack in law may very well be better served with a well-tuned moral compass.

What I wanted was a black and white set of instructions; what I got were largely-expected grey areas. And this was not the fault of Ms. Smith: she was well-prepared, very articulate and handled the questions (few though they were) with professional aplomb and a sharp mind. The fault lies in the fact that social media is largely, almost completely, unregulated. I think that it all happened so quickly that the slow and ponderous ship that is the average policy-maker has not yet had a chance to wake up to the many implications. Oh sure, lip service is paid, but actual laws and policies to govern usage? There are not many, and so mote it be: "Leave us alone, 'ya lily-livered scabs, it be ourrrr island".

So what does South African law have to say about social media? Not a whole lot. It does say one thing, in fact, and it is defined thus: it is not lawful in South Africa to post something on social media about another person or parties that "has the effect of injuring a plaintiff's reputation. A plaintiff's reputation is injured if the statement tends to lower the plaintiff in the estimation of right-thinking members of society." It doesn't matter if the statement made is true, a lie or faked. If it brings down a person's reputation in the eyes of normal-thinking people, this is defamatory.

You know how this works. It seems almost as if the Social Justice Warriors and other concerned citizens sit all day with their cursors poised above the Reply button, waving carpel-tunnel wrists about in their Pavlovian eagerness to just comment, comment, comment on that, comment on this, show the world their moral outrage from behind the comfort and safety of their keyboards. You can barely post a cat video without some activist or other pointing out some incongruity with may be construed as inadvertent cruelty to animals. The Internet is inherently an angry: without fear of consequence, we have at it. But beware of what you say, folk. As evidenced by Isparta vs. Richter, your comment can become expensive. We think that this fabled Freedom of Expression is the firewall by which we can hide behind: it is not.

In a nutshell, this is how it unfolded: back in April 2012, some comments were posted on Facebook. I am not going to list the entire discussion. A woman posted some comments on Facebook about her husband's ex-wife, tagging her husband in the process. She used the ex-wife's name and the names of her two children. These posts largely ridiculed the ex-wife's involvement in the new wife's life, and of course it attracted the usual comments and Likes. While the judge ruled that these initial postings were defamatory, it was another that appeared a little later on that sparked all the interest. Posted it Afrikaans, it translates into English as follows:

”To all moms and dads…what do you think about people who allow stepsons to bath little sisters every evening because it makes the mother's life easier????"

The post attracted a lot of negative comments. The mother in question took exception to this, and a lawsuit ensued. You don't need an explanation to understand the implications and accusations of impropriety behind those words.

This then, is the context, as explained to and accepted by the court and now part of the official case records: the husband worked abroad and the ex-wife (the plaintiff) wished to keep him involved in the lives of their children and from time-to-time, as any normal-thinking and right-behaving person would do, she sent him photographs, informed him of their development and shared poignant moments in their lives. One photograph she sent to her ex-husband shows a whiteboard standing on a laundry basket with simple addition sums written in red marker, the ex-wife's stepson demonstrating something or other. Another photo shows the ex-wife's stepson in the bathroom, being pelted by a wet sponge, apparently thrown by another child in the bath itself (a boy and girl, then aged four and six respectively, were bathing at the time). The text that accompanied the photo read: "Die pampoene het a wiskun-deles in die bad gekry."

Roughly translated: "The pumpkins had a maths lesson while in the bath."

This is obviously, from my opinion and from the opinion of the court, a jovial domestic moment. Only a depraved mind would see the impropriety therein. The ex-wife believes, and probably rightly so, that it was these photographs that led the first defendant (the new wife) to post the comments that she did.

The husband, though commenting not at all, was jointly sued. This is because he had been tagged in the comment and, under SA law, had not distanced himself from it by disclaimer or any other method.

So consider this, when posting: your comment could become expensive. If you are involved in any way, either by being tagged and not retracting it, or by commenting on a post from another person and thereby adding fuel to the original comment, you are just as guilty as if you had made the comment yourself. Considering that the person tagged did not have to provide permission to be tagged, stands as one of the grey areas and it should be explored further.

Nonetheless, however fair or unfair towards the husband, the ex-wife was awarded R40 000 in damages. And precedent was set.