GWII CPD session: Defamation and social media: a liability insurance perspective

On the topic of ‘Defamation and social media: a liability insurance perspective’, Gauteng Women In Insurance (GWII) hosted a Continuous Professional Development (CPD) session on 25 March, proudly sponsored by main sponsor Camargue, and co-sponsor Everinghams.

Speaker Daniel Kidd, Director at Everinghams Attorneys, discussed a few case studies involving defamation in complex commercial and insurance disputes and professional indemnity litigation and general liability cases.

“Over the past few years, we have seen growth in social media usage Currently, there are 3.9 billion active social media users and social media usage grows approximately 376 million people each year. So, what do we get when we equip half the world’s population with a platform to express their thoughts and views as they please?” Asked Kidd.

Defamation and its history

“Defamation and sharing of harmful or false content has legal consequences. Defamation is the infringement of a person’s reputation,” said Kidd.

“An Edict codified in AD 130, declared that an action could be brought for shouting at someone contrary to good morals. The essence of the offense was in the unwarrantable public proclamation. In Anglo-Saxon England, defamation was punished by cutting out the person’s tongue. In Roman law, abusive chants were even punishable by death. Initially, defamation was only a criminal offence. But as the law developed, people became entitled to civil compensation for defamation. In the Roman era, a person was entitled to claim that he was being defamed if someone with messy or untidy hair followed him around,” added Kidd.

“In order to succeed with a claim for defamation in a South African Court, it is necessary to prove the following three facts: the publication (the defamatory statement must be known to at least one person other than the plaintiff), defamatory material (the material must be defamatory in nature), and that is relates to the plaintiff (a causal connection between the defamatory material and the plaintiff),” said Kidd.

A case study

One of the first cases dealing with defamatory posts on Facebook was that of Isparta versus Richter.

“The first defendant made various posts on her Facebook wall concerning the plaintiff (his ex-wife). The second defendant (the first defendant's wife at the time) was tagged in the first defendant's posts but did not post any comments. Two of the first defendant's posts suggested that the plaintiff was a bad mother and permitted an inappropriate relationship between her step-son and daughter. The court found these posts defamatory, and awarded damages of R40 000 to the plaintiff, payable by both defendants jointly and severally,” emphasised Kidd.

“What did we learn from this case? South African law does not require a person to be the originator of the defamatory content to be held liable – merely repeating or "sharing" a defamatory post is sufficient to constitute defamation. A person may be equally liable for another person's posts where that person knows that they have been tagged in the other person's post and allows their name to be used, and fails to take steps to disassociate themselves from the defamatory post. A series of comments or posts published via social media may have a defamatory meaning when read together, despite each comment or post appearing individually harmless,” continued Kidd.

“Who can be held responsible? Facebook page administrators, WhatsApp group admins (WhatsApp is a form of social media and sending a post electronically on WhatsApp constitutes publication), Retweeters, Shares, possibly even liking posts. A “like” is associated with a positive value judgment indicating support for the content,” said Kidd.

“So, its worthwhile checking out the coverage in liability policies to properly manage the exposure,” concluded Kidd.

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