privacy dead"Privacy is dead, and social media holds the smoking gun" Pete Cashmore. As highlighted in the recent decision by the Honourable Willis, J in the South Gauteng High Court matter of H v W (12/10142) [2013] ZAGPJHC 1 (30 January 2013), South African courts are having to take account of the changing realities of technology and society so as not to lose credibility.

As part of the judgment, Willis J stated that "[w]ithout credibility, law loses legitimacy. If law loses legitimacy, it loses acceptance. If it loses acceptance, it loses obedience. It is imperative that the courts respond appropriately to changing times, acting cautiously and with wisdom."

The matter before the court involved an allegation of defamation by the applicant in respect of a 'post' relating to his personal life made by the respondent on Facebook (the global social media site). The respondent alleged that the post was not intended to defame the applicant but rather ''in order for the applicant to reflect on his life and the road he had chosen.''

The applicant approached the court for an order interdicting the respondent from posting any further information in respect of the applicant on Facebook or any other social media site (failing which, that the respondent be placed under arrest for a period of 30 days or such longer period as the court may determine) and compelling the respondent to remove the post from Facebook and any other social media site, failing which, that the sheriff of the court be ordered to remove the postings. In a letter by the applicant's attorney addressed to the respondent, reference was also made to a possible claim of damages by the applicant.

The court was required to apply common law principles relating to privacy in reaching a determination as to the applicant's claims. In the judgment it is acknowledged that there is a lack of South African case law dealing with social media related issues and that the common law needs to be developed in accordance with constitutional principles.

The right to privacy is a fundamental right which has been entrenched in the South African Constitution. In reaching a decision on whether the applicant had been defamed, the court had regard to decisions by the Constitutional Court in terms of which the right to privacy and the close link between human dignity and privacy is recognised.

In its finding, the court held that the post by the respondent was indeed defamatory towards the applicant and that the defences to defamation did not apply in that the post, whether true or not, could not be considered to be to the public benefit, nor in the public interest and the respondent was not able to provide justification for the post. The court states that the background between the parties coupled with the words themselves indicated that the respondent acted out of malice or improper motive when the offending comments about the applicant were posted. The court also held that the post was unlawful.

In its determination as to whether the relief sought by the applicant should be granted, the court was satisfied that the first two requirements for an interdict had been met in that the applicant had a clear right to privacy and reputational protection and the applicant had shown that he had a reasonable apprehension that he would suffer irreparable harm if the interdict was not granted. The court then had to consider whether any remedy other than an interdict was available to the applicant. In this regard, the respondent alleged that damages would be a proper remedy. The respondent further argued that the applicant could have approached Facebook, reported the defamatory post and requested the posting to be blocked.

The court did not support the respondent's argument and held that no other remedy would have the same effect as issuing an interdict and ordering the removal of the posting and also that an interdict would serve to resolve the issue without the ''needless expense, trauma and delay that are likely to accompany an action for damages in cases like this.'' In addition, the court ruled that there was no evidence to assure the court that Facebook would comply with a request to remove the posting and that "if one wants to stop wrongdoing, it is best to act against the wrongdoers themselves."

The respondent was accordingly ordered to remove the post relating to the applicant from Facebook and all other social media sites and to pay the applicant's costs for the application. The court did not, however, agree to interdict and restrain the respondent from making future posts relating to the applicant through social media nor that the sheriff be ordered to remove the post. In this regard, the court noted that it was not sure whether the sheriff of the court would be in the position to remove the post to the extent that the respondent failed to do so. The court welcomed the applicant to approach the court should the respondent fail to comply with the order granted.

This judgment highlights that, although Facebook and other forms of social media have afforded users the platform to share information, thoughts, opinions and photographs, the world of social media is not immune from legal sanction. As stated by Willis J "those who make postings about others on the social media would be well advised to remove such postings immediately upon the request of an offended party." Our law protects every person's right to dignity and tranquil enjoyment of his/her piece of mind, but also every person's right to his/her reputation, including that which is enjoyed through social media.

Submitted by:
Simone Gill, Director, Mariska van Zweel, Associate, and Mukelo Ngobese, Associate, Technology, Media and Telecommunications practice, Cliffe Dekker Hofmeyr

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