The dismissal of 10 Discovery Health employees over messages sent on a WhatsApp group has highlighted the importance of refraining from making defamatory remarks on online-based platforms.
These employees were fired after it was discovered they had created a WhatsApp group in which they “shared information and messages that were clearly prejudicial to and derogatory of the company”.
The employees had created the group as a support platform after contracting COVID-19, but Discovery Health CEO Ryan Noach said one of the members of the WhatsApp group shared the content of the conversations, which included planning and initiating efforts to maliciously shut down the company.
In its letter to one of the affected workers, Discovery Health accused them of making false and damaging statements about the company to an external party and attempting to organise a shutdown of Discovery offices in Port Elizabeth and Cape Town.
Discovery Health further indicated that the employees did not use the internal processes available to them to lodge their grievances.
This matter is just one real-life example of how behaviour on social media like WhatsApp could have severe, life-changing ramifications for its users.
South Africans should be aware that they can also be sued for defamation or charged with crimen injuria for comments made on the platform.
MyBroadband spoke to social media law expert at the Digital Law Company Emma Sadleir about how defamation on WhatsApp is dealt with in South Africa.
WhatsApp defamation criteria
Sadleir explained there were three requirements to sue for defamation in South Africa:
- Publication – Defamatory remarks are shared with or published to a third party.
- Reference – The statements clearly refer directly or indirectly to a particular person, even without specifically naming.
- Defamation – It must hurt the reputation of the ordinary-thinking third party.
Sadleir elaborated on how these conditions are applied with regards to WhatsApp.
“In a one-on-one message on WhatsApp, there is no defamation, because you are sending it directly,” Sadleir explained.
However, if you send it on a WhatsApp group, even a private one, there is publication. Therefore, you can be sued for defamation on WhatsApp groups, Sadleir warned.
“Whether it’s sharing with one person or a million other people, you’ve met the first requirement,” Sadleir said.
In addition, she warned that sharing or forwarding the content in question also makes you responsible for that content, which could make you party to the defamation.
It should be noted that serious infringements on someone’s dignity could amount to crimen injuria, which does not require any publication.
In these instances, direct messages would be enough to get you in even deeper trouble, as you are now dealing with a criminal offence.
One example of this would be the use of racial slurs, such as in the case of Adam Catzavelos, who was criminally charged for a rant in which he repeatedly used the k-word.
Catzavelos was sentenced with a fine of R50,000 or two years imprisonment, both wholly suspended for five years.
As opposed to crimen injuria, defamation is a civil and not a criminal offence. However, this does not mean that the punishments are less severe.
If defamation is found, the court can order the payment of a hefty fine for damages, in addition to an apology, and certain efforts to be made to correct the statements.
Former finance minister Trevor Manuel was awarded R500,000 in damages in a case against the EFF in 2019.
The party had falsely claimed that Manuel was a business associate and relative of SARS Commissioner Edward Kieswetter.
Sadleir said that she believes in most instances fines are not the best outcome, however.
“For me, defamation is much better cured by apologies, retractions, deleting the original content, or making corrections, rather than being paid money,” Sadleir said.
Sadleir noted that defamation is an area of law which tries to balance two conflicting rights.
“On the one hand you’ve got the right to freedom of expression, on the other hand you’ve got the right to dignity, which encompasses the right to reputation,” she explained.
In the event that you are sued, the law provides for two primary defences for defamation – truth and public interest. If both requirements are met, it may amount to justifiable defamation.
“You’ve got to be exposing somebody for a legitimate reason,” Sadleir said.
“For example, if you are just going on a rant about what a big loser your ex-boyfriend is, there’s no public interest, you’re airing your dirty laundry,” Sadleir said.
“But if you’re talking about the fact that he was a domestic abuser, or violent, or partook in illegal behaviour, then that would be public interest.”
When employees get fired
When it comes to employees who are typically disciplined or dismissed because of what they say about their jobs or employers on social media, there are generally two categories of offenders:
- Employees who bring the company’s name into disrepute.
- Employees who breach their duty of good faith towards a company.
Back in 2017, for example, FNB fired four employees for racial comments on WhatsApp and via company emails.
Sadleir said that as defined by the relevant codes of conduct, people must avoid publishing any behaviour which makes their company look bad.
“Don’t bite the hand that feeds you,” she cautioned.
“We live in a capitalist world, and you can’t go on Facebook and post about how much you hate your boss or clients, or how incompetent your colleagues are, because you are going to get fired.”