Defamation of character law: You should be careful of what you post on social media. One consequence that may arise from posting unverified information on Facebook or any other social media platform is a defamation of character claim.

Last week, comedienne Felistas Murata, affectionately known as Mai Titi by her fans, was reportedly slapped with a $500 000 lawsuit by her former friend Memory Muyaka after an internet row.

To prove defamation of character, the victim has to show that one made a statement that was published, it caused the victim injury and it was false and was not a privileged statement. The statement must be spoken or written.

While the Mai TT case is subjudice, H-Metro yesterday spoke to various lawyers on the implications of filing a lawsuit over social media claims, whether one can be sued for negative comments, what constitutes a defamation lawsuit and how public figures can prove ‘actual malice’ in a defamation suit. Top Harare lawyer Caleb Mutandwa said when dealing with a subject as this, it is required to balance the competing rights that relate to defamation.

“This subject requires that we balance the competing rights, there is the right to freedom of expression, whereby people should be allowed to express themselves, but then people must not then express themselves in a way that injures the rights of others, like the reputation of others.

“So the posting of negative stuff on social media doesn’t necessarily invite some legal consequences or a lawsuit, unless if in doing the posting one’s intention is to harm one’s reputation and they intend to defame that person by posting the things that they know are not truthful, so if one does that, they may end up facing legal action in courts for defaming one’s character,” he said. Mutandwa said for a claim for defamation to stand, one must have published a statement they know is defamatory.

“For the claim for defamation to stand, one must have published a statement that they know is defamatory, defamatory in the sense that it is calculated and intended to undermine one’s status, or good name, or reputation, and there should be no truth in that statement, and it must not be in the public interest to publish that statement on social media.YOU MAY LIKE

“One should then balance those competing aspects that one is publishing a defamatory statement and that they know it’s not true and that’s it’s not in the public interest to publish those falsehoods,” he said.

He added that it is very difficult for public figures to prove actual malice in a defamation of character case.

“It is very difficult for public figures to prove actual malice in a defamation suit, but then one must realise that in a civil suit where one is suing for defamation, the requirements are that one must be able to prove that there was a defamatory statement that was published, and that the publication was intended to defame reputation, good name or status.

“So in proving that the publication was so intended, things like where one publishes statements they know are false and they don’t bother to check the correctness of that statement, they will have to then be at the onus to prove that the accusations are in fact true, so they will fail in that respect, hence the person being sued will face a challenge in proving the correctness of their statement especially where they act recklessly without checking the accuracy of the facts that they are alleging and that they said about someone,” he said.

Farayi Zuva added that when claiming defamation over a social media post, one has to bring recordings or screenshots to work as proof and rewets or reposts may assist in proving the damage caused or people reached.

“Posting something negative and defamatory can be subject to a lawsuit for defamation, or any other damages caused by that publication, the essential element here is publication, so there must be publication of the statement.

“Publication in the same way defamation can be applied on a newspaper article about someone which a newspaper would have published, a social media post, or a video posted on a social media page, or a live post on social all qualify as a publication because it would have put out there in public for followers to view it.

“The essential elements of a claim include that there was a publication of a statement which was purported to be a fact, there must be damage, or injury caused by the publication so one needs to prove those things when they make a claim for defamation, there is also the consideration of the following the person who posted has, the larger the following, the more damage caused, recordings or screenshots of the said publication should also be brought along with the claim as evidence,” he said.

“Retweets or repost can also assist in proving the nature of the damage caused by the post, traditionally we are used to people claiming against newspapers where we said this newspaper has a huge following, for example, the H-Metro, with social media we look at the handle or the page that posted the defamatory post, how popular is it, the kind of following it has, all these contribute to the damage that can be caused.

“When you talk about malice, the malice is really more at the statement which was published, on how it was malicious, I think that leans on whether it was a fact or not, one can allege that the statement was malicious, injurious, the person who is usually injured is a person of repute, if it is something talking about morality, one can plead that they are an ordinary citizen or a leader in a church and this is obviously malicious,” concluded Hove.

South Africa based attorney Eleanor Mbanga for one to succeed in a defamation lawsuit the alleged statements must be false.

“Defamation is basically saying something that is harmful to an image of another person, its harmful to them emotionally, socially, psychologically or even financially, it must be false because if it’s true it doesn’t calculate to defamation, with politicians however it’s a mixed bag so that’s why sometimes its regarded as fair comment if something is said about a politician on social media because they are public figures and are subject to critic.

“The post must be for public interest for it not to be defamation, so if you say something for public interest, such to say you have proof that something stole public funds that’s not defamation because its truth and of public interest, but if its untrue, not a fair comment and not for public interest, its defamation of character,” she said.

Top lawyer Oliver Marwa said an essential element of defamation is the communication of something that is false purporting it to be true.

“When dealing with defamation, there has to be the communication of something that is false purporting it to be true with the person who is publishing that falsehood having the fault or the negligence of posting it anywhere knowing that it is false, or realising that it may be false, but without taking steps to ascertain the veracity of the publication.

“Defamation will only be defamation if that false statement is maliciously communicated to a third party, who is not the person being defamed, in this case if you communicate via social media, any false statement of and concerning another person on social media it qualifies as the communication that is needed to prove defamation,” he said.

Marwa added that another thing that the person who is complaining to have been defamed should show is that he or she should have suffered some damages. “The person who is complaining to have been defamed should show that he or she would have suffered some damages, it means they ought to have some standing in society to be negatively impaired by the false statement of fact that should ordinarily affect them.

“For example, I will not suffer as much damages as Mr Jeff Bezos (founder of AMAZON) will if certain statements are published of both of us by the same person over the same media, so as a plaintiff, one should be able to prove that their estimation or social standing has been damaged to an extent that can be ascertained in monetary terms, hence the claim,” explained Marwa.

Brighton Pabwe said journalists have a defence of public interest when accused of defamation but reiterated that each case depends on its own particular facts hence outcomes differ on each case.

Source – H-Metro