Social media and the law: how your tweets can land you in trouble

A recent insert on consumer affairs show Carte Blanche highlighted the seriousness of social media lawsuits that followed as a result of comments made by individuals on social networks such as Twitter and Facebook. The show featured a social media Law specialist, Emma Sadleir (an Associate at Webber Wentzel) who explained that whatever your publish on social media could land you in serious trouble.

Sadleir explained that social media law is “the law that regulates any conversation that takes place over the internet, called user generated content” (UGC). She explained that the instant a person publishes information [including comments on tweets, retweets or even the hosting of comments on one’s Facebook page] you are subject to the same laws that would apply to the traditional media. This means that every person who has access to the internet and publishes content is considered a publisher.

Defamation of character versus freedom of expression?

In the past individuals — even political representatives — had not been very successful in winning lawsuits against comments posted about them on social media. However, recent events have now shown many successful lawsuits being won for claims of defamation of character. The argument that the internet allows for freedom of expression (without boundaries) is no longer tolerated as recent lawsuit wins have shown.

According to Sadleir, the law of defamation says that as soon as the publication reaches a third party it has been published. She explained that if you have a Facebook profile (even if it only has five friends) and you post a comment there, it has been published. This means that your content on your profile – including your tweets and retweets — is subject to defamation law.

As far as freedom of expression on the internet is concerned, Sadleir explained that while freedom of expression is a very important constitutional right, that right is not unlimited. “If your speech infringes on the rights of another, violates copyright or constitutes hate speech then your freedom is legally limited,” says Sadleir.

Citizen journalists (individuals who tweet opinions and comments on the internet for others to see) need to be aware that they could be subject to lawsuits. Sadleir’s advice is that if you wouldn’t be prepared to put your name and face next to a comment on a major billboard in a high traffic area, then you shouldn’t post same on the internet.

Are negative comments about a company or brand subject to defamation law?

While it seems clear that an individual could be held liable for publishing a negative comment on the internet about another individual which may injure his or her reputation, what about those many negative comments made about companies and brands daily on social networks?

Paul Jacobson, legal expert and founder of web.tech.law, commented about the many posts made about Oscar Pistorius across social media platforms saying that: “Pistorius stands accused of murder but he hasn’t been found guilty. He is still, in our law at least, innocent.” He further added that drawing conclusions about Pistorius’ guilt and publishing those conclusions online can lead to a defamation claim down the line.

Oscar Pistorius is an individual, however he is also considered a brand, and as such, these comments made about Oscar Pistorius could be considered harmful to him personally as well as his brand’s reputation in the long run.

According to an article on Media Bistro’s All Twitter, it seems that Twitter related defamation cases are lining up around the world involving individuals, public figures, celebrities and brands. In an unrelated case — just days prior to the Oscar Pistorius shooting — the South Gauteng High Court in South Africa granted an interdict to a user to stop posting content about a friend on Facebook. This was the first case and ruling of its kind in that country, proving that South Africans will have to take responsibility for the content they post on Facebook and Twitter.

Whether an individual ‘citizen journalist’ or ‘traditional’ journalist publishes information that could be deemed defamatory to either an individual, company or brand, it seems that one could certainly be liable for defamation for unsubstantiated negative comments.

So just make very sure that whatever you say ‘in public’ [on Facebook, Twitter, Hello Peter and other social media platforms on the internet] is truthful and that you can back your comments with substantiating evidence and factual information should you be expected to defend your comments in a court of law.

The full Carte Blanche insert is available on the show’s site.