‘Naming and shaming’ has become a powerful tool on social media platforms to expose the illegal or unethical actions of others. Although the constitutionally entrenched right to freedom of expression may protect those who name and shame others online, this protection is not without limitations. A publication of this nature could lead to a defamation lawsuit against the originator and anyone who perpetuates the defamatory material. In this day and age of quick Google reviews, Facebook posts and Instagram comments, users should take care not to carelessly express unfounded opinions to the detriment of others.
Defamation is defined as the wrongful and intentional publication of material which has the effect of impairing the reputation of another person. In the context of social media, acts such as ‘sharing’, ‘liking’ and ‘retweeting’ a defamatory post or comment may be regarded as the perpetuation thereof. It was held in the case of Isparta v Richter and Another (22452/12)  ZAGPPHC 243 that merely being ‘tagged’ in a defamatory post could result in you sharing liability with the originator, should the court find that you were aware of the post and made no effort to dissociate yourself from it.
When determining a case of defamation against an individual, our courts strive to find the appropriate balance between the affected person’s right to human dignity and privacy, and the originator’s right to freedom of expression. With the prevalence of naming and shaming of businesses on social media, what considerations do our courts make when the affected party is a commercial entity?
In the 2016 case of Flocutt (Pty) Ltd v Eisenberg (3592/2016)  ZAFSHC 200, which deals with an individual’s decision to expose the unsavoury practices of an automotive parts business in several online publications, Murray AJ stated: “it is trite that not only private individuals, but also legal persona … have a right to their good name and unimpaired reputation, and that the dignitas of companies can also be infringed”. Here, the originator took to various social media platforms to warn the public that the business has a tendency of either not delivering goods after payment has been made, or that it delivers faulty goods and denies consumers of any recourse.
The Court had to determine whether the posts complained of were indeed defamatory, and, if so, whether the posts are justified in that the originator has proved that they are true and in the interest of the general public and/or constitute fair comment. It held that the following considerations are paramount to making its decision:
- the interest of the public in being informed;
- the manner of publication;
- the nature and tone of the published posts;
- the reliability of the source of the information;
- the steps taken to verify the truth of the allegations; and
- whether the party defamed has been given an opportunity to comment on the statements before publication.
In determining whether the publications should be deemed defamatory, the Court applied the following test: whether, in the opinion of the reasonable person with normal intelligence and development, the reputation of the business concerned has been injured. Based on this, the publications were deemed defamatory.
The publications failed to meet the first ground of justification (truthfulness), as the facts upon which the allegations were based were not proved with reliable evidence but were mostly based on allegations made by other individuals. This resulted in the second ground of justification (public interest) not being met either, as a defamatory publication which is untrue or only partly true can never be in the interest of the public.
To meet the final ground of justification (fair comment), the Court held that the following four requirements need to be met:
- that the defamation amounts to comment and to the assertion of an independent fact (in the eyes of the reasonable person);
- that the comment is fair (based on the convictions of the community);
- that the facts on which the comment is based must be true and known to the party referred to in the publication; and
- that these facts are in the interest of the public.
The Court found that publications failed to meet the final ground of justification in that they amount to nothing other than conjectures. The originator was subsequently ordered to remove his posts and to pay the costs of the suit.
In the recent case of Bool Smuts and Another v Herman Botha (887/20)  ZASCA 3, the Supreme Court of Appeal had to decide not on whether a publication is to be deemed defamatory, but whether it infringed a commercial business owner’s right to privacy. The originator, a wildlife conservationist, posted photos of dead animals in cage traps located on a commercial farm. Coupled with the photos, he posted the name and contact details of the owner of the farm, along with the address of the farm. The farm owner instituted an urgent Application in the High Court, which ordered the removal of the farm owner’s personal and business details from the post. The High Court held that the public interest lay in the topic, not in the identity of the farm owner and the particulars of his business.
On appeal, the Supreme Court of Appeal set aside the decision by the High Court and held that it is indeed in the interest of the public to link the unethical and inhumane act to the commercial entity responsible for the act. It held further that the farm owner had no legitimate expectation of privacy in this instance as the contact details and business information included in the post was already in the public domain.
Although the farm owner based his suit solely on the infringement of his right to privacy, the Court considered the exact same grounds of justification as the Court in Flocutt (Pty) Ltd v Eisenberg did. In doing so, the Court arrived at the conclusion that the farm owner could not be permitted to unjustifiably limit the originator’s right to freedom of expression and his entitlement to make a fair comment on the facts that are true and related to matters of public interests.
The Court emphasised that the right to freedom of expression in section 16 of the Bill of Rights enables every citizen to express himself or herself and to receive information and ideas. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions freely, on a wide range of topics. The Court further commented that the purpose of public debate is to say things that others find different and difficult – public debate does not require politeness.
Even though the above two cases had complete opposite outcomes, a trend in our courts’ methodology is apparent in both instances. Each matter demonstrated that our courts will carefully scrutinise cases of defamation to ensure that one does not get away with posting half-truths or unwarranted complaints in order to harm a business. It is also evident, however, that commercial entities acting unlawfully or unethically are by no means shielded from being named and shamed online by individuals. Members of the public have the freedom to decide which commercial entities they support and which they do not, they also have the freedom to make this decision in an open and transparent environment. Our courts are clearly aware that this freedom of choice can only be properly exercised if mechanisms exist to lay bare the nefarious activities of commercial entities, and that such mechanisms must be protected in the right circumstances.