In the case of Heroldt v Wills 2013 (2) SA 530 (GSJ) the South Gauteng High Court considered defamation and the infringement of privacy through Facebook.

The Respondent posted information on Facebook that portrayed the applicant as having a drug and alcohol problem, as well as failing to financially support his family.

The Applicant requested that the Respondent remove the information on Facebook on the grounds that same constituted defamation and an infringement of privacy. However, the Respondent refused to do so.

The Applicant then applied to court for an order to, among other things, interdict and restrain the Respondent from posting any further information about him, and to remove the post on Facebook.

The court held that the test for determining whether the information posted has a defamatory meaning is whether a reasonable person, of ordinary intelligence, might reasonably understand the words concerned to convey a meaning that is defamatory of the litigant concerned.

The court also noted that the privacy settings on Facebook may be adjusted by the users themselves to restrict the content that other users may view.

The users of Facebook therefore are aware that their information may be shared by default, and must take affirmative steps to prevent the sharing of private or potentially defamatory information.

The court also considered the defence of fair comment and held that in order for this defence to succeed, the comment must be based on the facts expressly stated, or clearly indicated and admitted or proved to be true. However, the presence of malice or improper motive will defeat the defence itself.

Therefore, it is not good enough that the published words may be true; the publication of the information must also be to the public benefit or in the public interest. Nevertheless, the law protects everyone’s dignity and reputation.

The question of whether private facts are worthy of protection is determined by reference to ordinary or reasonable sensibilities and not to hypersensitivities.

The court was satisfied with the Applicant’s arguments and accordingly ordered the Respondent to remove all her postings on Facebook or any other site in the social media which refer to the Applicant.

Written by Molisa Cheda.