Companies and WhatsApp group administrators may occasionally be held liable for libelous content posted online by staff members and group members.
However, this can’t absolve the original publisher of liability, claims Phetheni Nkuna, director of employment law at Cliffe Dekker Hofmeyr.
Nkuna was asked by MyBroadband about internet libelous statements and how they affect employers.
Companies may be held vicariously accountable if defamatory material is disseminated using their names or resources, according to Nkuna.
The business’s knowledge of the matter or if it actively supported the dissemination of the damaging or defamatory comment must also be taken into account, according to the expert.
In order to safeguard themselves in the event that such situations occur, Nkuna advised businesses to create procedures about employees publishing offensive or libelous material.
“Companies need to take the appropriate steps, have policies in place, monitor, and educate their staff, as well as inform them of what the ramifications of breaking its policies or destroying its reputation would be,” she said.
Nkuna added that if the occurrence tarnishes the reputation of the business, it may be entitled to compensation from the employee in the form of a lawsuit, termination, or even criminal charges.
Concern regarding the deletion of WhatsApp admin
Some WhatsApp users are concerned about a recent update’s potential legal repercussions for group administrators in South Africa.
On its iOS mobile app, WhatsApp has begun rolling out a feature that enables group administrators to remove messages or files shared by other members.
Legal authorities recommended that group administrators now have a stronger obligation to monitor the information supplied by other members.
According to the social media platform’s rules, it may be the admin’s obligation to remove the content, but the individual who actually publishes the content is the one who is liable, she added.
They started by publicly disseminating unpleasant or potentially damaging content to someone’s reputation or good name.
She said, “At most, the group admin may be indirectly held accountable for not deleting, but they were not accountable for publishing.
Nkuna clarified that group administrators might be put in danger if they divulged the material to others or knew it had been released but concealed it from their omission.
However, she continued, “it doesn’t absolve the actual material producer of obligation.”
Defamation as defined by law
According to Nkuna, the basis for defamation is established using a two-part test that takes into account how a reasonable person would interpret potentially defamatory material.
She defined a reasonable person as someone who is not inherently suspicious, overly critical, or unusually sensitive.
The question is whether a person of average intellect could have reasonably inferred from the context that the words meant something negative about the complainant.
Then, she continued, “it looks at the natural and customary meaning of the specific sentence.”
Defamation as defined by law
According to Nkuna, the basis for defamation is established using a two-part test that takes into account how a reasonable person would interpret potentially defamatory material.
She defined a reasonable person as someone who is not inherently suspicious, overly critical, or unusually sensitive.
The question is whether a person of average intellect could have reasonably inferred from the context that the words meant something negative about the complainant.
Then, she continued, “it looks at the natural and customary meaning of the specific sentence.”
She continued by pointing out that offensive material isn’t only confined to text; it may also take the form of memes, images, and spoken utterances.
Proven defenses
Nkuna stated that if the statement that was published was factual, the accuser could avoid culpability. He or she then gave examples of successful defenses against defamation accusations.
But she made it clear that everything depends on the situation.
Nkuna said that just because something is true, it doesn’t necessarily follow that it should be disseminated maliciously or negatively.
She added that if the disclosed material is for the public good, the accused may be exempt from liability.
“For instance, Matshela Koko, the former CEO of Eskom, recently appeared in court on corruption and fraud allegations. Sharing that information would help the public because Eskom is an SOE, these are issues that arose during the state capture enquiry, etc.,” Nkuna said.
She emphasized the need for truthfulness in information that is disseminated in the public interest.
You might believe that something would be of interest to the general population, but that isn’t always the case, according to Nkuna.
Information sourced from: Myles Illidge 9 November 2022 – My Broadband