PONDER THAT POST – DEFAMATION IN THE TIME OF SOCIAL MEDIA.

PONDER THAT POST – DEFAMATION IN THE TIME OF SOCIAL MEDIA.

The public at large have been turning their attention away from the traditional sources of news, information, and social interaction because of the advent of social media, and particularly the uber commercialization thereof in the past decade. Inevitably the result is that most individuals are active on platforms such as Facebook, Instagram, Twitter or a myriad of other social media outlets offering similar services. If not, consider for instance that friendly local neighbourhood WhatsApp group established for the benefit and security of all local residents.

The availability and use of these alternate media sources should of course be applauded. What does however potentially present a problem is the ease with which original content can be further disseminated and / or agreed with either via comment, tagging or onward posting, as such potentially casting the net for a defamation claim wider than was traditionally the case.

Defamation in South African law is aimed at protecting a person’s dignity and/or reputation. When assessing a claim for defamation, our Courts will enquire into the presence or absence of the following requirements:

  1. Did the publisher have the intention to defame?
  2. Were the statements wrongful?
  3. Was there a published defamatory statement made about the complainant?
  4. Did the complainant suffer harm(damages) because of the defamatory statement?

For purposes of the current article, these requirements, and the defences available thereto will not be fully canvassed, suffice it to say that our Courts base their decision as to whether defamation has occurred, on the facts of each particular case.

In the past, before social media became mainstream, claims for defamation were in the vast majority of instance limited to the source of the publicised statements given that they would invariably appear in printed media. Social media has considerably changed this landscape given that potential defamatory statements made by an originator can now be disseminated and / or agreed upon by several secondary consumers exposing themselves to potential action in their personal capacity or as part of a specified group.

This is clear based on the following principles which have been exposed by our Courts recently:

  1. You don’t have to be an originator of potential defamatory statements to be held liable for defamation.
  2. Simply sharing or liking a third-party post can be seen as defamation.
  3. Where you are tagged in a defamatory post and fail to remove yourself or disassociate yourself from the post, it can be seen as defamatory.
  4. Even if a specific individual’s post in isolation may not be seen as defamatory, several different individual’s posts can be seen as defamatory when viewed as a whole.

Given the widening net for defamation claims, specifically in relation to individuals who may or may not be the originators of potentially defamatory statements, it is worth noting that any Constitutionally guaranteed right is subject to limitations, including the right to Freedom of Speech. It is thus well advised to carefully consider not only your own individual social media posts, but also the entire thread of posts relating to any matter under discussion.

The additional care that needs to be taken before engaging actively in group discussion and / or comment online is all the more apparent since the active and well publicised pursuit by the Human Rights Commission of various individuals making racial comments online.

Of course, in your eagerness to avoid being associated with defamatory comment on social media originating from a third party, do not neglect to carefully consider any content originating from yourself.

Remember, if in doubt, do not post.

Article by Gavin Jordaan, Associate: Litigation

For more information contact Gavin at 044 601 9900 or office@rgprok.com.


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GET LEGAL ADVICE BEFORE BUYING YOUR HOME
It is important to note that our law provides that any agreement that deals with real estate must be in writing and that oral agreements when buying and selling real estate are unenforceable.

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For many of us, the privilege of owning your own home is the beginning of wealth creation and security. Especially when buying your first home, the thought of the process and what it all entails can be very intimidating. Many people are ignorant about terminology associated with the process and the risks involved can make you anxious. After all, you are trading with your biggest asset.

The team of Rauch Gertenbach in George is ready to assist you with any law-related issues.

The following basic principle applies: You will be bound by what you contractually agree on. It is therefore very important that you contact your property lawyer as early as possible so that he can inform you in detail about the pitfalls and processes – preferably even before you decide to make an offer on property.

Once you have signed the agreement, you are bound by the terms contained therein. Written agreements can only be changed in writing by way of agreement between the parties after the time and amendments to the terms of a signed agreement are not enforceable unless it is in writing and signed by the parties.

It is important to note that our law provides that any agreement that deals with real estate must be in writing and that oral agreements when buying and selling real estate are unenforceable.

It’s no excuse to say after the fact that you did not know what you were drawing or what you were getting yourself into. So talk to your lawyer beforehand before doing anything. What should I discuss in advance with my lawyer?

Although most terms of purchase contracts for the purchase of property are obvious, there are certain terms that can usually lead to misunderstandings and potential disputes e.g. 

  • Bandage klousules.
  • So-called “72 hour” clauses.
  • The obligation to point out and disclose visible defects.
  • Disagreements about what exactly is a fixed attachment.
  • Correctness of building plans.
  • Conditions registered against the title deed of the property.
  • Costs associated with the registration of the transfer of the property as well as the registration of the mortgage. Both of these cost aspects are for the account of the buyer.
  • Which compliance certificates must be obtained, for example for the electrical installation, the gas installation and the electric fencing of the property.

 

In whose name should the property be registered?

It is important to determine in advance in whose name the property should be registered. Your matrimonial property dispensation will determine this, but furthermore you also have the choice of e.g. a family trust or company in which the property can be transferred. These choices have practical and legal consequences. So do your homework well in advance and consult your accountant about the tax implications of your choice.

Who can appoint the transfer attorney?

An attorney, who specializes in the registration of property transfers, must be appointed to handle the process. Such attorneys are called conveyancers or conveyancers. Transfer of ownership of real property from an owner to a buyer, is formally registered in the deeds office. Only once registration has taken place does the buyer legally become the new owner of the property.

Because it is the seller’s property that is transferred, the seller has the choice to designate the conveyancer of his choice. So choose a law firm that you can trust with your greatest asset and that you know can act with integrity, professionalism and efficiency.

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