DEFAMATION IN THE DIGITAL AGE

Not on belief alone, and this is where most people go wrong.

When our courts assess whether a publication was reasonable, they ask what the allegations were based on, how reliable the source was, and what steps were taken to verify the information. That standard was developed for the press. In our client's matter it was applied, without dilution, to two posts on a Facebook page.

So the question is not whether you believed it. The question is what you did to check before you published, and a court decides that objectively.

In substance, yes, and I put it more bluntly than a judgment can. You are the editor of your own page.

The law does not ask what you call yourself. Saying you are not a journalist is not an answer to anything. It asks what you published, what it was based on, and what you did to establish that it was true and fair and of legitimate public concern.

Everyone with an account has taken on the freedom of a publisher. Very few have noticed that the duty came with it.

It does. Defamation requires publication, and publication means one other person. It does not require an audience.

If I say something insulting to you and only to you, it stays between us. The moment I say it to one third party, I have published it. One name on a WhatsApp. One person copied on an email. A remark in a group of four.

I once wrote a blunt line about an opposing attorney's client in a letter. Because the staff in that office read the letter, that was publication to a third party. The claim that followed was for R1.9 million and it ran to the third day of trial before it settled. The group chat is not a private room.

You can be. Share it and you have published it. Forward the screenshot and you have published it. On how the law has developed, even liking a defamatory post can draw you in, jointly and severally with the person who wrote it and with the administrator of the page it sits on.

The reason is not technical. Every share is a fresh publication to people who will never see the correction. In our client's matter the posts were removed under court order, but within hours of going up they had already been shared across numerous other public and professional Facebook groups. The order reached the original. It could not reach the screenshots.

The rule I give clients is one sentence. Do not forward an allegation you would not be prepared to prove. Passing it on does not pass on the risk. It adds you to it.

As the administrator, you carry responsibility for what appears there, and the same applies to a Facebook page and its comment threads.

The objection is always that nobody can read everything, and it is a fair objection. It is not a defence. The law leaves you two workable answers. Appoint moderators, or delay publication until someone has looked. Neither is free. Both cost less than the alternative.

There is a second reason to take the comments seriously. In our client's matter the court used the reader comments as evidence of what the posts meant. Readers called the profession criminals with law degrees and thieving thugs in suits, and one asked whether they had stolen everyone's trust money. The court held that readers had not taken the posts as an investigative hypothesis. They had taken them as a declaration of guilt. The comment section was part of the record, and it was the part that did the damage.

Truth is half of a defence. The statement must also be published in the public interest, and you need both.

The test is not whether the public would be interested. It is whether the public has a legitimate interest in knowing. What a private person does privately is generally his own affair. If he holds himself out publicly as an example of the opposite, that is a different matter, because now it goes to the core of the position he has taken.

In our client's matter the court found the allegation objectively false and held, in any event, that there is no public interest in posting untrue and unverified statements about an experienced attorney.

This is the finding from the judgment that reaches furthest beyond the case. An ongoing investigation does not make the allegations in it true.

On the investigator's own version in our client's matter, he had travelled to Cape Town to seek confirmation and to give our client a hearing. That means, on his own account, the allegations were unconfirmed and unverified at the moment he published them.

The court also refused to rely on his source. That person was himself the subject of the fraud investigation, had every incentive to implicate someone else, promised to put his allegations in a signed statement and never did, and could not say what had become of the money that was the whole point of the allegation. The court held the hearsay unreliable and declined to admit it.

The rule that follows is short and it will save you a great deal of money. If a person will not commit an allegation to writing and sign it, you may investigate it. You may not publish it.

In our client's matter the court listed them, which is unusual and useful. The investigator did not telephone the number on the firm's letterhead, which he claimed to hold. He did not send an email. He did not contact the Legal Practice Council to verify the correct address. He did not approach the landlord or building management. He did not ask a single neighbouring business. He never contacted our client about the investigation at all.

There was no bounced email and no disconnected line. The court held that some or all of those checks could have been performed in the space of another few hours or a day, and that no reason was given for the need to post at all.

He saw locked doors, boxes and the lights off. A lawful relocation was, in the court's words, within the realm of objective possibilities. He never explained why he had ruled it out. One phone call would have ended the matter before it started

Screenshot everything, including the comments, and do it now. Posts get deleted, often by the person who wrote them, and the comments are usually the best evidence of the damage done.

Put your demand for removal in writing the same day. Keep it factual and keep the proof of delivery.

Take advice on urgent relief. The first two cost you nothing but the time, and they are what makes the third one possible.

No. It feels like defending your name. What it does is push the post back up the feed and give the argument a second life, in a forum where you cannot control the terms of it.

Do the quiet things instead. Preserve, demand, advise. Then let the correction happen where it carries weight.

Faster than most people believe, and speed is the whole strategy.

In our client's matter the first post went up on 6 November. We demanded removal on 7 November. The urgent application was launched on 8 November, and the interim order was granted on 9 November. Three days from publication to a court order compelling removal.

A court will hear an urgent application where the harm is real and continuing, and a false allegation circulating online is exactly that. What causes delay is not the court. It is the weeks people spend hoping it will resolve itself, while the post spreads and the evidence disappears.

Usually that is the wrong first question, and in our client's matter we did not claim damages at all.

A damages action can take years to reach trial on the current rolls. At the end of it our client would have been compensated for a reputation he no longer had, in a practice that might not have survived the wait. The court put it better than I can. A future claim for damages cannot restore the wildfire effect of a social media campaign.

So we sought what repairs the injury. Removal within 24 hours. An unconditional retraction and apology on the same page that carried the allegation, pinned there for at least seven days and carrying a link to the judgment. An interdict against repetition. And costs, on the punitive attorney and client scale. Every head of relief was granted.

Damages may still follow. But they are the second question, not the first.

Ask any attorney for a written estimate before you instruct them. If they will not give you one, that tells you something.

Two things are worth knowing. Urgent interdictory relief is usually far less expensive than a damages action, because it is measured in days and weeks rather than years. And costs can shift. In our client's matter the court ordered the respondents to pay costs on the punitive attorney and client scale, holding that our client should not be left out of pocket for what it described as reckless and malicious conduct.

That does not happen in every case and it should never be assumed. But a successful applicant is not automatically out of pocket.

Understand what the demand is and what it is not. Removing a post is not an admission that you were wrong. It costs nothing, it is reversible, and it stops the damage accumulating while the merits are worked out.

In our client's matter we demanded removal from 7 November, by letter of demand and by WhatsApp. What came back was not removal. It was a proposal to meet so that our client could clear his name. The court dealt with that in a line: the first respondent effectively refused to delete the posts, or sought to bargain before doing so, which amounts to the same thing. That refusal is why costs were awarded on the punitive scale.

So the first question is not whether you were right. It is what it costs you to take the post down while you establish whether you were right.