Under certain circumstances, companies and WhatsApp group admins might be held responsible for defamatory content posted online by employees and group members.
However, according to the director of employment law at Cliffe Dekker Hofmeyr, Phetheni Nkuna, this can’t take responsibility away from the original publisher.
MyBroadband spoke to Nkuna about defamatory statements posted online and their implications for employers.
Nkuna explained that companies could be held vicariously liable if defamatory content is published under the banner of its name or using its resources.
“It also needs to be considered whether the company was aware or if it, by conduct, encouraged the publication of that harmful or defamatory statement,” she said.
Nkuna said companies should implement policies related to employees posting defamatory or harmful content to protect themselves if such incidents occur.
“Companies need to take the necessary precautions, have policies in place, monitor and educate their employees, and also tell them of what the consequences of breaching its policies or harming its good name would be,” she said.
Nkuna also explained that the company could have a claim against the employee — including civil action, dismissal, or even criminal charges — if the incident harms its good name.
Concern over WhatsApp admin delete
A recent WhatsApp update raised concern among some of the platform’s users over its potential legal ramifications for group admins in South Africa.
WhatsApp started rolling out a feature on its iOS mobile app that lets group admins delete messages or multimedia shared by other members.
Legal experts suggested that group admins now have a greater responsibility to police content shared by other members.
However, Nkuna said although group admins could be held responsible for failing to delete harmful content, they can’t be held accountable for the content itself.
“It may be the admin’s responsibility in terms of the social media platform’s rule to delete the content, but the person who actually publishes the content is the one who’s responsible,” she said.
“They took the first step of publicly sharing content that is harmful or that can cause damage to somebody’s good name or reputation.”
“At most, the group admin could by some extension be held responsible for not deleting, but they were not responsible for publishing,” she added.
Nkuna explained that group admins might be at risk if they shared the information further or were aware of its publication but kept it implicit from their omission.
“But that doesn’t take responsibility away from the actual content publisher,” she added.
Legal definition of defamation
Nkuna said the basis for defamation is established using a two-pronged test that considers a reasonable person’s perception of potentially defamatory content.
“A reasonable person is somebody who is not necessarily of a suspicious mind, someone who is super critical, or somebody who is abnormally sensitive,” she explained.
“The test is whether a reasonable person of ordinary intelligence might have reasonably understood the words to convey a meaning that is defamatory of the person with the complaint.”
“It then looks into the natural and ordinary meaning of the particular statement,” she added.
Nkuna explained that there were several factors to take into account when considering the natural and ordinary meaning, including:
- What has been said;
- What it implies;
- The context within which it said; and
- The facts surrounding the publication.
“Our courts have accepted that content that is published would be defamatory if it is likely to injure the good esteem within which the complainant has been held by reasonable persons within their community or within society,” she said.
Nkuna noted that defamatory content isn’t just limited to written words and that defamation can happen within your immediate community, whether in social or professional circles, if it causes people to think less of you.
“You don’t necessarily have to be a celebrity or somebody in the public space to be defamed,” she added.
She added that defamatory content isn’t limited to written words and can include verbal statements, pictures, and memes.
Nkuna provided examples of proven defences against defamation claims, saying that an accused could escape liability if the statement they published were true.
However, she specified that this is dependent on circumstance.
“Just because something is truthful doesn’t mean it has to be put out there in a malicious or harmful way,” Nkuna said.
She said the accused could also evade liability if the content they published is for the benefit of the public.
“For example, recently, we had the former Eskom chief executive Matshela Koko appearing on corruption and fraud charges. Somebody sharing that content would be for public benefit because Eskom is an SOE, these are issues that arose during the state capture enquiry, etc.,” Nkuna said.
She emphasised that information published in the public interest must still be true.
“You may think that something would be of interest to the public, but it’s not necessarily true,” Nkuna said.