, the new wife of the plaintiff’s ex-husband posted on Facebook defaming the plaintiff. She also tagged the plaintiff’s ex-husband in the posts. The ex-wife took both parties to court for defamation and claimed damages.
Judge Hiemstra found that the comments were defamatory. However, the most profound outcome of this case was not that the court awarded the plaintiff damages but that it held that both the new wife and the ex-husband must pay the damages even though the ex-husband was only tagged in the posts. The court held that even though the second defendant is not the author of the postings, he knew about them and allowed his name to be coupled with the first defendant. He was as liable as the first defendant.
Following this court case, it is vital to remember that if you are tagged or mentioned in questionable content on social media and you don’t actively take any steps to distance yourself from it, you could be liable too.
Unfortunately, our law on this subject has not been tested further in our courts. However, the trend from a number of international courts is that a person who repeats, adopts or re-publishes a defamatory statement will be held to be the publisher.
For example, in the McAlpine case in the United Kingdom, the court held that a person who retweeted a defamatory statement was as liable as the original poster.
Tagged in vs sharing or liking
If you are tagged in a post by friends or family, it would usually indicate that you are referred to in the post or that you partook in the discussion, but there are various examples of people being tagged in posts when their profiles are hacked or when their privacy settings are too lenient.
The courts will consider the context of the post that you are tagged in and the link between you and the original poster. If you have no causal link with the poster (for example being hacked) and you were clearly in no way connected to the post or have an interest in it or if someone that you haven’t had any contact with for years suddenly mentions you in something, it would count in your favour. But, either way, you should untag or disassociate yourself immediately.
If you can show that you have not logged into your social media account and were unable to know about the post that you were tagged in, you will not be held liable for not disassociating yourself with the post.
If you didn’t see the post, don’t know the original poster, have no idea how you were tagged, have never engaged with the poster and have taken all steps to remove yourself from the situation, you will not be liable as being part of the chain of publication.
If you share or retweet or like posts, this is through your own direct actions which cannot be attributed to a third party. You cannot escape liability if you made the choice to share something dubious, unless your phone was hacked, or a friend logged into your account that you left open.
- Review your friends or followers lists and the type of content they share. If you don’t agree with it, take a pro-active step to clean up those lists.
- Change your privacy settings on social media. Ensure that you need to consent to any tag or post on your account before it goes live or is posted on your profile.
- Don’t share or like any questionable content on social media.
- If something slips through, un-tag yourself or delete the post. If you can’t, at least apologise. Courts look favourably on apologies made on the same platform where the defamation or hate speech occurred.
If you are stuck in a troublesome social media situation and need assistance, feel free to contact our Social Media Law Department!
 Isparta v Richter and Another (22452/12)  ZAGPPHC 243; 2013 (6) SA 529 (GNP) (4 September 2013)
 The Lord McAlpine of West Green Claimant v Sally Bercow  EWHC 1342 (QB)