Libel on Facebook: ‘Public Interest’ Not the Same As ‘Interesting to the Public’

Be careful what you say about your friends on Facebook – even if it is true it could be libellous!

Social media postings are increasingly coming under the spotlight of the law. In the UK hate mail has led to criminal investigations and there have also been libel actions – not least against Sally Bercow who posted defamatory information on Twitter about Lord McAlpine and had to pay damages and substantial costs.

In South Africa, the case of H v. W involving defamation on Facebook is worth noting, not least because the judge said that even if a statement is true, that is not a good defence to a claim of defamation: it must also be in the public interest for the statement to be published.

In this case a woman posted the following on her Facebook wall:

I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified. Remember I see the broken hearted faces of your girls every day. Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to take responsibility for the consequences of your own behaviour? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, do you still see a man?

When he became aware of the posting, the man in question asked her to remove it, and when she refused, he applied to the court in Johannesburg for an order that any statements about him should be prohibited.

The court didn’t go that far but they did order the offending statement to be removed. In his decision the judge said:

“In our law, it is not good enough, as a defence to or a ground of justification for a defamation, that the published words may be true: it must also be to the public benefit or in the public interest that they be published. A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’.

“The courts do not pander to prurience. I am satisfied that it is neither to the public benefit or in the public interest that the words in respect of which the applicant complains be published, even if it is accepted that they are true”

With thanks to Walkers, Attorneys of Cape Town, for this:

If your business has employees using social media, this contract may be useful – it is designed to minimise legal risks: