SOCIAL MEDIA AND THE ACTIO INJURIARIUM IN SOUTH AFRICA – AN EXPLORATION OF NEW CHALLENGES IN THE ONLINE ERA

Abstract

The rapid rise in the use of social media networking sites in South Africa has posed new challenges to our courts. The law of defamation and privacy, which has long been considered well established, is now facing new demands on its boundaries because of the unique characteristics of social media in the online era.
This note will discuss and critique three recent cases individually, concerning issues arising from the use of Facebook (a social media website) and the approach of the courts in extending the traditional law to the new demands of social media interaction.
The aim of the note is to evaluate: the considerations which should apply to the granting of an interdict in respect of comments posted on Facebook, especially where alternative remedies are available; whether social media should be treated differently from electronic news media; how to establish ownership of a Facebook profile where such ownership is disputed; liability for anonymous defamatory posts on an individual’s Facebook profile; whether an individual can be liable for defamatory posts not made by himself personally, but in which he has been tagged; whether comments posed as questions can be regarded as defamatory; and the role played by apologies in claims for damages in defamation.
The note concludes by discussing how South African courts have extended the traditional principles governing the actio injuriarium action in South African law – to the new challenges posed by the rise in popularity of social media networking sites.