An extremely scandalous posting on Facebook will cost a Pretoria woman – the author of the damned posting, and her husband, who was tagged in the message – R40 000 in damages following a ruling by the Pretoria High Court.
Acting Judge Jan Hiemstra on Wednesday ruled that a senior manager at Sars and mother of two, who instituted the damages claim, be compensated. None of the parties is being named, as there are young children involved. The mother (the plaintiff) turned to the court claiming that her former husband and his new wife were badmouthing her in cyberspace.
She especially felt aggrieved by two postings on Facebook by her former husband’s wife and certain comments which followed on the woman’s Facebook wall.
The judge said although the former husband was not the author of the postings, he was tagged and knew about them and allowed his name to be coupled with that of his (new) wife. “He is thus as liable as the first defendant (the author of the postings),” the judge said.
The plaintiff and her former husband are embroiled in legal proceedings and she last year obtained an interdict against him that he may not come near her home or work. She claimed he was “extremely dangerous” and that she was prompted by the similarity of the Chanelle Henning drive-by shooting to ask for protection against him. He denied the allegations and vowed to “fight it with all his might”.
The plaintiff had, meanwhile, remarried and her new husband’s 16-year-old son is living with them. She also has custody of her and her former husband’s two small children. Subsequent to media reports regarding the interdict, the first defendant made a number of postings on Facebook, in which she tagged her husband. The plaintiff claimed two of these postings were defamatory of her.
In the first, the author, among others, “thanked” the plaintiff for “watching her postings with an eagle eye” and in a subsequent posting she sarcastically referred to their “celebrity status” following the media reports.
The judge said in the full context of the postings, the woman seemed to ridicule the plaintiff on a public forum, which was belittling, but he deemed the second posting as the most damning.
In this the first defendant wrote: “To all moms and dads – what do you think of people who allow step brothers to bath their little sisters each night, simply because it would make the mother’s life easier?”
Comments posted in response included someone saying “Not a chance” and “Hell, will never allow that.”
The context of this posting is that the plaintiff (at the time) regarded her former husband as a good father and as he worked abroad, she often sent him pictures of their children.
She forwarded him three pictures of the children in the bath (which were handed to court as exhibits). One picture shows a white board with simple addition sums in a red marker, with the 16-year-old stepson demonstrating something.
Another showed the boy being pelted by the children with a wet sponge. The plaintiff told her husband the children got a mathematics lesson in the bath.
These pictures apparently sparked the posting and the plaintiff said it was malicious as it portrayed her as a bad mother, allowing an inappropriate relationship between her stepson and the children
‘This is obviously a jovial domestic moment. Only a depraved mind can see impropriety therein,” the judge remarked.
He added that there was an exchange of messages on the defendants’ walls and it was clear that they referred to and were part of an attack on the plaintiff, to which several people responded.
Regarding the second posting, the judge said: “It suggests that the plaintiff encourages and tolerates sexual deviation, even paedophilia. Some of the defendants’ friends lapped it up with relish and added their own snide comments, compounding the damage to the plaintiff’s reputation.”
In awarding damages, he said an apology in the same medium (Facebook) would have gone a long way towards mitigating the damages and clearing the name of the plaintiff.
The defendants, however, hold the view that they were entitled to publish whatever they liked, about anybody. According to them Facebook is open to everyone and everyone’s opinions.
The judge remarked that they, instead, raised technical defences.
Be careful what you share or tag:
Candidate attorney Stuart Scott at Weber Wentzel Attorneys gives a few pointers on the responsible use of Facebook to minimise the risk of being held liable for defamation:
“Our law does not require the defendant to be the originator of the defamatory content. Merely repeating a defamatory statement made by another person may constitute defamation. On Facebook it follows that ‘sharing’ a defamatory post would be sufficient to meet the publication requirement.
“The second defendant (in this case) was held equally liable for postings authored by the first defendant even though he was merely tagged. It is because the second defendant knew that he was tagged in the postings and allowed his name to be used.
“To minimise risk, set your privacy settings on Facebook so that comments that you are tagged in are not immediately published on your wall (and must be individually approved before they appear). Alternatively, where you have reason to suspect that a comment in which you are tagged is defamatory you should immediately untag yourself and thereby remove the comment from your wall.
“The defamatory comments need not refer to the plaintiff directly or by name. The test is whether the defamatory words would be understood to be published of and concerning the plaintiff. The court’s approach in this case demonstrates that, when determining whether the remarks refer to the plaintiff, each posting need not be interpreted separately.
“When determining whether the content has a defamatory meaning, this judgment shows that…a series of comments may have a defamatory meaning when read collectively.”