Although we hear defamation and/or hate speech around us regularly, mostly, we see it on social media. It is almost as if people believe that because they are protected behind a keyboard or a screen, they can say whatever they feel like. Social media remains a public platform and everyone using it, just as in real life, has the right to not be defamed by someone else or subjected to hate speech.

Defamation is an unlawful and intentional publication of a defamatory statement concerning a person and which has the effect of diminishing the good reputation of such person.

On the other hand, the Promotion of Equality and Prevention of Unfair Discrimination Act

[1] puts a strict prohibition on hate speech. No person may publish, circulate, promote or communicate words based on one of the “prohibited grounds”, against any person, if these words can reasonably be interpreted to demonstrate a clear intention to either be hurtful; harmful or to incite harm; or to promote or broadcast hatred.

There is a long list of “prohibited grounds” that includes race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, culture and language. It also includes any other ground that undermines human dignity.

Recent examples of hate speech in the news, including Penny Sparrow, Vicky Momberg and Adam Kantzavelos, demonstrate what an impact this type of behaviour has in South Africa and what the severe consequences of these actions are.

What about freedom of expression? It is a constitutional right!

The first response to an accusation of defamation or hate speech may well be: “It’s my freedom of expression to say what I want and to have my own opinion.”

Although everyone in South Africa has the right to freedom of expression in terms of Section 16 of our Constitution[2], this right can be and is limited.

Defences to defamation claims include: the truth, if it is in the public interest or if it is fair comment. However, neither of these are blanket defences that excludes all liability. The opinion expressed must be based on true facts and be in the public interest for it to be a protected opinion and even then, there is a fine line between a protected opinion and merely defaming someone.

Hate speech is a criminal offence. There are very few defences to hate speech and your right to freedom of expression is certainly limited in this case. Very recently, the Equality Court found a pastor in Cape Town in contempt of a court order because he made hateful statements against gays and lesbians. The court had to consider whether the pastor’s defence that he was merely expressing his religious views and exercising his right to freedom of speech was valid and found that it was not. He has been sentenced to imprisonment for a period of 30 days.

What can you do about defamation on social media?

If a comment defames you, you have legal grounds for an action for damages for defamation. Repeating a defamatory statement made by someone else may also constitute defamation, i.e. being tagged in a defamatory statement on Facebook[3], sharing or liking a defamatory post or engaging in the comment section.

You can apply to court for an interdict to force the defamer to remove all the posts about you and to refrain from posting about you in future and claim legal costs from him/her.

You also have the option to apply for a protection order in terms of the Protection of Harassment Act[4]. Once the order is granted, it will be a criminal offence if the defamer posts about you or defames you again and he/she can be arrested for contempt of a court order.

What can you do about hate speech on social media?

Hate speech is a criminal offence and you can lay a criminal charge against the person. If found guilty, he/she may receive a fine or even a jail sentence.

If the person is constantly harassing you with hate speech while there is an ongoing criminal investigation, you can apply for an interdict or obtain a protection from harassment order as set out above as well.

If you see hate speech on Social Media, that might not be directed at you personally, you can lay a complaint at the South African Human Rights Commission, which will investigate the matter and take it further if necessary.

The Prevention and Combating of Hate Crime and Hate Speech Bill has been drafted and is now at Parliament for processing. This Bill clamps down on all forms of hate speech and the impact thereof will soon become a reality.

Conclusion

Defamation and hate speech on social media have serious consequences – being dragged to court, losing your job, having your business boycotted or even jail time. Your right to freedom of expression only gives you limited protection.

It is interesting to see the action taken by celebrity couple Basetsana and Romeo Kumalo who have laid criminal charges and are currently applying for a protection order against someone who allegedly started a rumour on Twitter about them appearing in a sex video. They decided to take a clear stand against their defamer and the “keyboard warriors who so swiftly jump on the bandwagon to share harmful content”.

Contact our Social Media Department if you have been or are being defamed on social media or if you are the victim of hate speech and we will assist you in finding the best possible solution to protect your interests and rights.

[1] 4 of 2000

[2] The Constitution of the Republic of South Africa, 1996

[3] H v W (12/10142) [2013] ZAGPJHC 1; 2013 (2) SA 530 (GSJ); 2013 (5) BCLR 554 (GSJ); [2013] 2 All SA 218 (GSJ) (30 January 2013)

[4] 17 of 2011

This article should not be used or relied upon as professional advice and is for information and marketing purposes. Please consult with one of our attorneys should you need legal assistance relating to this area of law.