Defamation and the Cyberbully
Q: Is it safe to say or write anything in internet chat rooms? If it’s anonymous you
cannot be held accountable…right?
A: Very Wrong!!!
Everyone knows that a bully is a person in deep pain and who is very insecure and has low self esteem. These people focus on the vulnerability of others. We find them everywhere…in schools, shopping malls, at the office, etc.
Be careful not to abuse the digital media. Slandering others on social networks such as Mxit, Facebook, Twitter etc, can have serious consequences. You could end up with a criminal record or a huge civil claim against you!
Q: But what is Defamation?
A: Defamation is the publication to two or more people, of words/images with the intention to demean someone in the estimation of their peers or the public.
Q: What is meant by publication?
A: This can be verbal or printed.
Q: What kind of words?
A: Slanderous words, words intended to humiliate, racial slurs, hate speech, anything that impairs someone’s dignity, reputation or good name.
Q: But surely we all have the right to free speech and freedom of expression??
A: Oh yes you do….but….no right is absolute!!
Q: What does that mean?...either you have a right or you don’t?
A: No right is absolute. There must be a balance. You may have a right to free speech but I also have the right to have my dignity protected by the law.
Q: But I also have the right to communicate anonymously….especially if I am young and may become the unsuspecting victim of sexual predators who engage in electronic grooming?
A: True. But just because you can communicate anonymously on certain forums, does not mean you should act as if you are untouchable, with impunity as if we live in a lawless free-for-all!! There are consequences.
Q: How can there be consequences if I communicate anonymously? The victim will not know who the author is.
A: Whether the identity of the author is known or not….consider this:
Some victims of cyber bullies become so depressed by this kind of victimization
that they withdraw from society or even commit suicide. If this happens, how
would you feel?
Q: Sure….but legally there can be no consequences?
A: Oh yes there are! The victim can determine your identity if he/she follows the correct process.
Q: But the Internet Service Provider (ISP) is not allowed to disclose my personal details!
A: If the victim follows due process… in other words, if he/she applies to court and follows the correct legal procedure, she can get a court order, serve it on the ISP and the ISP must then disclose the particulars.
Once your identity is known the victim may sue you for thousands, if not millions of rands. And remember…..the internet has the potential to reach millions of people….the more people you reach with your comments, the more harm you cause….more harm caused means more damages…means you pay more and more. Because statements on the internet can reach a substantial audience, the harm you cause is magnified and so also is the amount of damages you will have to pay your victim!
Q: So, that’s the worst that can happen? Can I go to jail?
A: The victim may also decide to prosecute you in a CRIMINAL court, over and above the civil claim. This means that, if found guilty, you will have a criminal record. (See notes on previous module on consequences of having a criminal record)
Q: So, what can I do if I am the victim?
A: First, be practical: keep records and print outs of the material as well as the web page particulars.
You may lay a crimen iniuria charge at the police station and/or you can bring an application as explained above.
Even if you do not know the identity of the bully, you may serve a TAKE DOWN NOTICE on the Internet Service Provider.
Q: What is a take down notice?
A: You simply serve a written notice on the ISP to remove the slanderous material from the site. The ISP must then remove the material as soon as possible. If they do not, you may sue the ISP.
Q: But why not sue the ISP right from the outset? It’s their website/chat room…they should also share the responsibility for bad stuff on their site???
A: Sorry, but no. This happens with newspapers where there is an editor who can intervene…the buck would stop with him but…..
Section 75 of the Electronics Communications and Transactions Act states, that the ISP cannot be held liable……publication happens without the intervention of an editor or other human being…this process is called “crawling”.
Q: But what if my statement is true, for example, I say that someone sleeps around and she is a slut? If it’s true, surely I can say so?
A: Be very careful! Just because something is true, does not mean you can publish it. The law says that, not only must it be TRUE, but it must also be IN THE PUBLIC INTEREST!!! As part of your defence you would have to prove that your statement is in the public interest.
So…..just because you are able to destroy a reputation does not mean you must do it.
Don’t click in anger!
Don’t click in frustration!
Don’t click in revenge!
Sleep on it.
Tone it down.
If you are not willing to sign your name, it probably means you should not publish it in the first place. |