Category Archives: Communication

BE CAREFUL WHAT YOU WRITE OR SAY

Classically, the law of defamation attempts to strike a balance between a plaintiff’s right to reputation, and a defendant’s right to freedom of expression – two rights that are recognised both at common law and in the Constitution. Defamation is a serious consideration in the interaction with letters, e-mails and general discussions. A plaintiff needs to prove firstly that a comment regarding him/her was publicised (to someone else than the plaintiff) and secondly that the comment was prima facie defamatory. Once this has been determined the onus is on the defendant to prove that his conduct was not wrongful (without intent).

Wrongfulness is based on intent as opposed to negligence. Even where it remains that the comment was wrongful, the defendant might still have several defences like:

  1. Truth of the statement;
  2. That the comments are in public interest;
  3. That the comment was just an opinion and not given as a fact;
  4. That the comment was fair under the circumstances;
  5. That the comment was made under circumstances of qualified privilege, where the defendant had a duty and someone else had a duty to receive the comment.

The fact that comment is the truth does not mean that it is not defamatory. The test to determine defamation is whether the reasonable person of normal intelligence would view it as defamatory. The defendant can succeed with his defence of fair comment and public interest if no element of maliciousness is involved. The plaintiff only has to prove that the comment was prima facie defamatory of his character and that it was publicised.

Publication can be to a specific person or within hearing distance of the general public and is material if heard by or publicised by the public in a book, postings on websites, or bulletin boards on the Internet.

The onus is on the defendant to prove his defences on a balance of probabilities. This means that where two versions are before a court it should decide on the most probable version under the circumstances. When the court cannot decide which version is the truth for argument’s sake and the defendant raised it as defence, he then will not succeed with his defence.

In a democracy, forthright criticism, wild accusations and innuendos – often unfair and unfounded – are part and parcel of political activity and right-thinking persons in society generally do not think less of politicians who are subjected to derogatory statements by opposing politicians or political commentators. The context might cause material, that would otherwise have been defamatory, to be no more than mere abuse. Courts allow wide latitude for political debate and politicians should not be over-hasty in complaining. Nonetheless, it is important to note that courts extend latitude, not immunity, and there are limits: any latitude extends only to political information or activity or issues pertaining to the country’s governance, not beyond. A distinction must also be drawn between an unwarranted attack on the dignity and reputation of a politician and an attack on the person’s political views, policies and conduct. Courts have to give effect to the values of openness, transparency and accountability, yet protect dignity and privacy. It seems that the bounds are exceeded where improper motives or dishonourable conduct is imputed.

References:

  • Law of South Africa, Volume 8(1) – Second Edition Volume
  • Delta Motor Corporation (Pty) Ltd, vs Van der Merwe, 2004 (6) SA 185 (SCA)
  • Constitution of the Republic of SA, 1996 ss 10 and 16
  • National Media Ltd vs Bogoshi, 1998 4 All SA 347 (SCA)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

FACEBOOK`S REVENGE

A3Facebook, Twitter and other social network sites are part of many people’s lives and serve as a useful vehicle for sharing one’s personal views. However, these sites may have unfortunate ramifications.

Let’s be honest, ranting in public about your boss has never been seen as a smart career move. It is one thing to speak your heart out about your boss to a friend over a drink, but for some reason or another, employees tend to lose their inhibitions when there is a computer screen between them and the world out there.

What happens when an employee makes use of a social network to air his/her views or to say nasty things about his/her employer?

Courts have held that it is fair for an employer to dismiss an employee for posting intentionally offensive statements about his/her employer on a social networking website like Facebook.

In Sedick & another vs Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA), employees were dismissed for bringing the company’s name into disrepute by publishing derogatory comments about the owner of the company on Facebook. The employees claimed that the employer breached their right to privacy by accessing their profiles on Facebook.

What happened?

The employees, De Reuck and Sedick, worked for a fashion accessories company. The company’s Marketing Manager logged onto her Facebook account and navigated to De Reuck’s Facebook page because she wanted to send her a friend request. She was able to see everything on the employee’s Facebook wall without being given access as a friend. She came across numerous posts by Sedick and other employees where they exchanged several snide remarks, which included the following: “Trust me, no one can put up with so much shit when the f*cking kids join the company!”; “From so-called ‘professionalism’ 2 dumb brats running a mickey mouse business”; “… today was hectic with Frankenstein”; “What an idiot”; “A very ugly man with a dark soul”.

The right to privacy?

The Commissioner noted that, in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002, section 4(1), “Any person … may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence.”

According to the Commissioner, the internet is a public domain and Facebook users have the option to restrict access to their profiles as well as the information that they publish. Because of the employees’ failure to make use of the privacy option, they had abandoned their right to privacy and the protection of the abovementioned act. 

Fair dismissal?

The employees argued that they had not damaged the company’s reputation because they did not directly refer to the company or anyone who managed it. The Marketing Manager and the Arbitrator agreed that the references to the company and its management were obvious, because the people who were reading the comments would probably have known what and whom they were about.

The Commissioner held that, considering what was written, where the comments were posted, to whom they were directed and by whom they were made, the comments brought the employer’s good name into disrepute with persons both inside and outside the organisation.

The Commissioner confirmed that a dismissal under such circumstances could be fair if the employer follows the correct procedures and if the evidence used against the employee has not been illegally obtained in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act.

The moral of the story is: if you had a really rotten day at the office and are about to post some nasty comments about Mr or Mrs Boss, hold on a second. Do not write under the influence of alcohol, anger or frustration, as this sharing might get you fired.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.