Defamation, naming and shaming, bad boy lists on websites

[Marq]

Here is a pending court case, the results of which could have a huge impact in the way we converse on websites, blogs and forums in SA. go here. I do not know of any other cases laying down precedent - so assume this would go a long way.

What are the legal ramifications of naming and shaming, being defamatory, just being obnoxious - you know....... the stuff we do in forums and blogs.

There are implications for the web site owner, the administrator, the poster and the recipient of the posts. Does an indemnity and a 'we are not responsible' clause in a page somewhere, cut it? Are these just opinions that are 'allowed' in terms of a constitutional right, what if we do not back them up or cannot?

[Debbiedle]

I know of a number of forums that had to shut down because of allowing naming and shaming. A close friend of mine has also been the victim of online bullying. The latter opened my eyes somewhat. The power of this internet to do good is awesome, the power to do harm is terrifying. I am not sure that the human race is truly understanding the full power of this monster yet.

[Dave A]

It's weird this one coming up now. I was saying to a colleague on Friday it's been an age since I last heard of a R1.00 damage award in a slander case
The result, if it goes to court, could be interesting.

There are some key points in that report that should be noted:

She denied writing the post but said it was done by someone very close to her and that she had knowledge of it.

So why is the ex-wife being sued?

The controversial website allows spurned and abused women to name and shame men, who have committed atrocities and warning others to avoid dating them.

Musiker said that the website was the perfect platform for someone who wanted to wreak revenge to come up with a pack of lies.

"It does not afford you an opportunity to correct it or offer your side of the story. There is no way that this website can help people.

I'm not familiar with the website, but in my opinion denying the opportunity to respond is... at least questionable. A website owner is not obliged to have pre-publication editorial control, so the nature of the content is not necessarily the issue there. However, freedom of speech should cut both ways - remember the Hellopeter thread! If you're going to provide the platform, allow equal access - at least that's the way I'm trying to see this implemented here.

For members and readers here, please note the privacy policy and general disclaimer are not just there for show. This website does track and collect the information it must as required by the Electronic Communications Act - and this is related to traceability.

The general disclaimer is to protect not only the owner of the website ( ), but to also provide reasonable protection for the members.

...all information read here is without any implied warranty of fitness for any purpose or use whatsoever.

How useful or useless any information here may be is entirely up to the reader.

[reuben]

Reuben] I do belive that there is time and a place for everything,the blog is not the way to get back at your ex bofriend/husband.there is being a better person ,and cut the ties.

[Dave A]

I know of a number of forums that had to shut down because of allowing naming and shaming.

Was that due to legal action or due to the community disintegrating?

I'm a member of a few communities for forum webmasters, and legal action involving forums tends to be reported quite well - and all said and done it's rare. I can't recall a single successful case against a legitimate forum website (there are some pretty shady ones which do get hammered - but their problems are not relevant to this debate), but stories of community disintegration abound.

[murdock]

i am personally guilty of getting angry and writting stuff on forums that when i have calmed down...thought about... not made up lies but just said things that dont need to been made public...i believe we should be able to remove contents like this or request that it be removed.

this is a problem with public forums it is toooo easy to express your feelings at the time...be happy...sad...or angry.

it helps sometimes to relieve stress then 2 days later you think what an as*.

maybe thats why dave keeps me on a short leash only giving me 1 green block...rep power 2

[Marq]

I'm still not sure how a general indemnity lets one off the hook? Its a fine legal technical argument here.

The website (forum,blog,site) is just a vehicle to express the thought. I would think that an argument could be that, if your site is moderated or that there are moderators, the words are being processed and validated by the website owner. As the website owner you will then have to show logs of changes (the actual indemnity reasoning) or show that reasonable attempts have been made to avoid general public hacking and editing of articles and notes. If you have logs then we can see who has done the editing. So final IP address that edited is responsible? (But I only added a full stop.....) Or the websites registered owner is maybe first in the queue?

Then there are those degrees of libel.

• This guys is an AHole and I have no proof to back this up.
• This guy is an AHole and I have proof thereof.
• This guy is an AHole and it is a matter of public record.
• This guy was reported to be an AHole in the other media and I am just passing this info on.
• This guy, apparently is an AHole - I heard it somewhere and it makes sense.
• In my limited opinion he is an AHole
• In my Expert opinion he is an AHole.

Theoretically the AHole can tackle you on any of these issues and threaten you with defamation and libel and death.
At what stage does one stay and defend writings or admit defeat and remove article?
What are the general principles a newspaper adopts?
If one apologises - is this tantamount to admitting guilt?

If one looks at an insurance indemnity. It may cover you against a claim but if it can be shown that you are negligent or have not taken all the necessary precautions to have prevented the situation that created the claim....it does not cover you. I think this is Tort Law......Is it the same...can one apply it here?

The more I think about this subject the bigger the minefield seems to become and the more questions seem to arrive.

Is there a definitive article on this story?

[Morticia]

I was very sorry to see the suspension of the site - my daily dose of comedy has now been suspended - some of the Casanova's and Romeo's featured were really EEEOOOWWWWW!!!!! Girl, what were you thinking????

Seriously (and as a woman nogals!!) my gripe with the site is that I got the impression 90% of the complaints were simply a case of sour grapes on the part of the so-called "victims".

And yes, the principal of this site is very similar to a local consumer-complaints site, where one can lodge a complaint for free, no holds barred, Should the guilty supplier wishes to defend themselves however, they have to subscribe at a cost to do so???

Where does libel stop and "constructive criticism" start?

[Dave A]

maybe thats why dave keeps me on a short leash only giving me 1 green block...rep power 2

I better repudiate that allegation now before things get out of hand and I get sued

I'm still not sure how a general indemnity lets one off the hook? Its a fine legal technical argument here.

I think Morticia puts this in perspective.

I was very sorry to see the suspension of the site - my daily dose of comedy has now been suspended - some of the Casanova's and Romeo's featured were really EEEOOOWWWWW!!!!! Girl, what were you thinking????

Seriously (and as a woman nogals!!) my gripe with the site is that I got the impression 90% of the complaints were simply a case of sour grapes on the part of the so-called "victims".

I'd suggest the disclaimer on TFSA really just sets out the reality of the situation "for the avoidance of any doubt." Can you take anything on the internet at face value? There has to be a judgment call on the part of the reader.

The website (forum,blog,site) is just a vehicle to express the thought. I would think that an argument could be that, if your site is moderated or that there are moderators, the words are being processed and validated by the website owner.

The problem there is the website owner or moderator is not necessarily a subject matter expert. They are there to moderate behaviour, not validate the content.

There's some serious discussion on this at Wikipedia - but I'll have to come back to it later.

My main point for now is that content on the internet is unreliable - and anyone who believes otherwise is the fool.

[daveob]

My main point for now is that content on the internet is unreliable

as is some of TV, radio, most junk mail, newspapers, magazines, all politicians and anyone who owes me money.

also, I think there seems to be a big difference between online comments against individuals vs companies -- I don't remember seeing any complaints against people on hellopeter.com, except where the person is mentioned in relation to the business.

[duncan drennan]

Not so relevant to the defamation thing, but relevant to the people writing slanderous (and other stupid) content - try listening to yourself.

[murdock]

as is some of TV, radio, most junk mail, newspapers, magazines, all politicians and anyone who owes me money.

well i must agree with you on this...the latest is now...i am with a different bank so it will take a day or for the money to reflect on your account...then its but i emailed you the eft blah blah blah...

another one is we have changed the system and its taking a while to proccess your invoice....blah blah blah.

i have never in my entire 17 years of bussiness heard so many people making excuses why my COD payment has not yet been paid...and boy am i hearing some excuses...it is getting to a stage where i will be requesting payment with the order number....the problem is it is just getting worse by the day...i feel for people who have huge overheads...besides the customers i am loosing because they are cutting and running becuase of the crime i now having customer who are leaving because their companies are closing down due to no work...and it is scary to see how many of the ones left have their staff on short time or will be going onto short time soon.

[Sieg]

On defamation

Then there was the case of Delta Motor Corporation (now General Motors, who make Isuzu, Corsa, etc) who tried to stop Jaco Van Der Merwe from "defaming" it by publishing all sorts of nasty stuff about his Isuzu bakkie that broke. He had banner ads put all over the bakkie.

See http://www.my4x4.co.za/Eng/index.html

Delta lost the case, all the way to the Appeal Court: http://www.saflii.org/za/cases/ZASCA/2004/61.html

Funny thing, this defamation.

Sieg

[Dave A]

Wow!

I hope every member who reads this will take a moment to use the thanks button to recognise Sieg's contribution.

Whilst anyone who thinks they might getting close to the line is advised to take a look at the judgement in full, the crux points seem to be (if you're allergic to long paragraphs, at least read the bold bits):

You may state the facts of the matter.

[8] The alleged defamation is contained in the e-mail and in the words displayed on the vehicle. Photographs of the vehicle were sent with the e-mail. Copies are not attached to the affidavits, but I shall assume that they show the same words: ‘Swakste 4 x 4 x Ver; Grondpad Knak Onderstel’. The first question is whether or not this was defamatory. I shall deal with the body of the e-mail first, and then with the words shown on the bakkie and in the photographs of the bakkie.

[9] The e-mail was sent via the internet to some 27 recipients. It reads:
‘Subject: FW:SWAKSTE 4 X 4 X VER.
Geagte vriend
Hiermee 'n verhaal wat ek met u graag wil deel. Hierdie bakkie se onderstel het op 5 April 2001 geknak op 29 000 km en 1 jaar en 1 dag oud. Met my terugkoms het Delta gesê ek het die bakkie misbruik aangesien daar 'n duik in die uitlaat pyp is en ook krapmerke aan die agterse ewenaar van die bakkie. Hulle sê ook dat die krapmerke dui daarop dat die bakkie aan 'n abnormale impak onderhewig was - Wat ek absoluut ontken aangesien my klein kinders agter in die bakkie lê en video kyk het op 'n klein TV. Tot vandag kon ek geen milimeter vorder met Delta nie. Ek het die SABS gaan aanklop en hulle het vir my 'n verslag gegee wat sê dat hulle van mening is dat die bakkie geknak het weens oneweredige staal. Selfs die SABS se verslag het Delta geensins laat afwyk nie en die aangehegte foto’s is die weg wat ek nou volg. Ek het ook gister vanaf 'n prokureur in Port Elizabeth verneem dat hulle opdrag het om 'n interdik teen my aan te vra. Ek sal natuurlik hierdie interdik ten sterkste teenstaan. Stuur hierdie epos asseblief aan soveel mense moontlik.
Groete
Jaco.’

[10] No innuendo is alleged. The test is whether a reader of ordinary intelligence might reasonably understand the words in the e-mail, in their ordinary sense, to have a meaning which reduces Delta in his or her estimation (Argus Printing and Publishing Co Ltd v Esselen’s Estate).[2] In my view the answer is no. Ignoring for the time being the heading ‘Swakste 4 x 4 x Ver’, the e-mail contains no adverse comment about Delta’s product generally or about this particular vehicle. Its author relates the common cause fact that the chassis bent when the bakkie was a year and a day old and had done 29 000 kilometres. He gives Delta’s view that this was because its driver had abused the vehicle, a conclusion that was reached because of marks on the exhaust and the rear suspension which led to the belief that the vehicle must have been subjected to an abnormal impact. He explains that he denies any such impact because of the presence of his small children in the back of the vehicle watching television. He then expresses dissatisfaction with the way in which Delta has handled his complaint by saying that he has made no progress whatever with them, despite a report from the SABS that the bent chassis was caused by inconsistencies in its steel structure. He comments that even this report did not bring about any change in Delta’s attitude. He says that his route is now to go the way of the attached photographs, that he has been warned of an interdict and that he will resist it strenuously. He ends by asking the recipient to send his e-mail on. It is evident that the author of the document has a dispute with Delta about his bakkie and that he is dissatisfied with Delta’s reaction, but I can find nothing in the wording of the document which is defamatory. There is nothing in what is said which might induce the reasonable mind to think less of Delta or its products. It can hardly be defamatory to say that in the writer’s view a vehicle made by Delta had a defect, that this conclusion was supported by a technical report, but that after an examination of its own Delta refused to agree.

You may express an opinion even if it is defamatory provided it meets certain conditions.

[11] I turn now to the words displayed on the bakkie and on the photographs of the bakkie. The respondent makes the point that these words do not mention Delta, and that on a fair reading the phrase ‘swakste 4 x 4 x ver; grondpad knak onderstel’ does not refer to Delta’s products in general but to his specific vehicle because, after all, it was only his vehicle whose chassis bent while being driven on a gravel road. This may be so. But the slogan is displayed on an Isuzu bakkie, a product manufactured by Delta, and in my view when it calls the vehicle the worst four-wheel drive vehicle by far, it reflects adversely not only on the particular vehicle, but on the product generally. It raises the possibility that the product is suspect or inferior because what happened to this vehicle could happen to other vehicles of the same make. In my opinion, this is prima facie defamatory: a reader of ordinary intelligence might reasonably understand the words to mean that Izusu bakkies generally are the worst 4 x 4 vehicles by far since they cannot withstand normal use on gravel roads. This applies to the words painted on the bakkie, the words shown on photographs of the bakkie sent by e-mail, and the words in the heading of the e-mail.

[12] Once the statement about Delta’s product is shown to be prima facie defamatory, the onus is on the respondent to show that publication thereof was not wrongful. The respondent seeks to do so by relying on the exercise of his right to freedom of expression. His defence is that of fair comment. There has always been tension between the right to freedom of expression, which is protected inter alia by the defence of fair comment, and rights to dignity, fama, and an unsullied reputation, which are protected by the remedies for defamation.[3] The Constitutional Court has held in Khumalo and others v Holomisa[4] that the principles of the common law as recently developed in National Media Limited and others v Bogoshi[5] are consistent with the provisions of the Constitution and maintain a proper balance between the right to reputation and the right to freedom of expression. It remains to apply those principles to the facts.

[13] For the defence of fair comment to succeed, the respondent must prove that the statement in question was a comment or opinion and not an allegation of fact; that it was fair; that the allegations of fact commented upon were true and accurately stated; and that the comment was about a matter of public interest (Marais v Richard en 'n ander).[6] ‘The use of the word “fair” . . . is not very fortunate. It does not imply that the criticism for which protection is sought must necessarily commend itself to the judgment of the Court, nor that it must be impartial or well-balanced. It merely means that such criticism must confine itself within certain prescribed limits’.[7] Those limits are that the comment must be a genuine expression of opinion, it must be relevant, and it may not be expressed maliciously.[8]

[reuben]

[Fantastic at last consumers have rights thanks jaco