“It takes your enemy and your friend, working together, to hurt you to the heart; the one to slander you and the other to get the news to you. ” – Mark Twain (1835 – 1910)
In one of his last judgments in the South Gauteng High Court in Johannesburg before being appointed to the Supreme Court of Appeal, Judge Nigel Willis considered the lawfulness of a posting on Facebook. The respondent had posted a letter to the applicant on the public social networking site. That led to the applicant asking the court for an order preventing such further conduct on the part of the respondent and for an order requiring her to remove the postings already made.
The applicant complained that the posting in question made allegations which were defamatory of him, in particular that he does not provide financially for his family, that he would rather go out drinking than caring for his family, and that he had a problem with drugs and alcohol.
The judge observed: “We have ancient, common law rights both to privacy and to freedom of expression. These rights have been enshrined in our Constitution. The social media, of which Facebook is a component, have created tensions for these rights in ways that could not have been foreseen by the ‘old authorities’ or the founders of our Constitution. It is the duty of the courts harmoniously to develop the common law in accordance with the principles enshrined in our Constitution. The pace of the
march of technological progress has quickened to the extent that the social changes that result therefrom require high levels of skill not only from the courts, which must respond appropriately, but also from the lawyers who prepare cases such as this for adjudication. ”
The judge pointed out that in our law, it is not good enough, as a defense to or a ground of justification for a defamation, that the published words may be true. It must also be to the public benefit or in the public interest that they be published. A distinction must always be kept between what is “interesting to the public” as opposed to “what it is in the public interest to make known. ” The judge was satisfied that it was neither to the public benefit nor in the public interest that the words about which the applicant complained be published, even if it were accepted that they are true. The respondent claimed that the words complained of were “fair comment”. Judge Willis disagreed. She had been unable to justify her posting. He pointed out that malice or improper motive by the perpetrator of the comment also acts to defeat the defense of fair comment. The background to the posting, together with the words themselves, indicated that the respondent had acted out of malice when she posted the offending comments.
The judge ordered the respondent to remove all postings which she had posted on Facebook or any other site in the social media which referred to the applicant.
“Not only can items be posted and travel on the electronic media at a click on a computer in a moment, in an instant, at the twinkling of an eye, but also they can, with similar facility be removed therefrom. This can also be done at minimal cost. The situation is qualitatively different from the scenario when newspapers have been
or are about to be printed in hardcopy and distributed. The law has to take into account changing realities not only technologically but also socially or else it will lose credibility in the eyes of the people. Without credibility, law loses legitimacy. If law loses legitimacy, it loses acceptance. If it loses acceptance, it loses obedience. It is imperative that the courts respond appropriately to changing times, acting cautiously and with wisdom. ”
Judge Willis quoted an article published in 1890 in the Harvard Law Review:
“Political, social and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society.”
Former Chief Justice Michael Corbett was also quoted as an authority in a judgment which he handed down twenty years ago in 1993 in the Supreme Court of Appeal, where he said: “In a case of publication in the press of private facts about a person, the person’s interest in preventing the public disclosure of such facts must be weighed against the interest of the public, if any, to be informed about such facts.”
Finally, Judge Willis had this advice: “Those who make postings about others on the social media would be well advised to remove such postings immediately upon the request of an offended party. It will seldom be worth contesting one’s obligation to do so. After all, the social media is about building friendships around the world, rather than offending fellow human beings. Affirming bonds of affinity is what being ‘social’ is all about.”
H v. W  2 All SA 218 (GSJ).