At the close of 2015, our nation was in uproar regarding the misguided and unfortunate posts of a real estate agent, Ms. Penny Sparrow. At the infancy of 2017, another unfortunate post reared its ugly head in the wake of the loss of one of our country’s greatest Springbok players of all time. Mr. Riaan Lucas’ unsavoury “meme” concerning the death of Joost van der Westhuizen is sure to follow the course of Ms. Sparrow’s post a mere thirteen months prior.
Freedom of expression vs the protection of human rights
In order to appreciate the boundaries of what constitutes an acceptable post on social media, one needs to first understand the balance between freedom of expression on the one hand, and the protection of the human rights and dignity of the greater community on the other hand. The circumstances that factor in when determining potential liability for a post on social media are the following: the audience reached by the post; the subject of the post; the intention of the post; the truthfulness of the post content; and the shock value or sense of shock created by the post.
One might consequently ask the question: “who might this post offend?” If the post affects only a single individual, the author of the post or comment could stand to be held liable for potential defamation claims whereby the affected person could launch an action claiming damages from the author. In addition, the person affected could possibly lay criminal charges against the author. Should the content of the post or comment possibly offend a larger audience or community, or have a racist undertone – as in the case with Ms. Sparrow and Mr. Lucas’ posts – the author could face a complaint at the South African Human Rights Commission. In some instances an employer can take disciplinary action against an employee for comments made by the employee on social media – especially if the comments relate to the employer directly or creates an adverse image of the employer’s business.
Social media and the law
The largest factor in deciding whether or not to post controversial content on social media could be the deterring nature of the possible consequences. Should a judge, commissioner, chairman or magistrate find that an author had breached the limitations of an acceptable publication, the author of the comment could be liable for the following: a judgment ordering the author to pay possibly hundreds of thousands in damages for defamation; a guilty verdict in a criminal case sentencing the wrongdoer to prison (as in the case of State v Hoho, the accused was sentenced to three years imprisonment, although the sentence was wholly suspended for five years); a finding that the author is guilty of misconduct, leading to dismissal from his or her employment; or, as in the case with Ms. Sparrow, being fined by the Human Rights Commission in the amount of R150 000.00 or more.
Although we are fortunate to be able to instantly reach hundreds of people by merely tapping our smartphones a few times, it stands to reason that one should take the time in considering the effect and consequences of your social media post content before publishing controversial thoughts. Hindsight might prove too late to rectify the damage you could do to yourself.
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Written by Dawie Coetzer
