Journalist. Writer. Researcher. Editor.

A media lawyer on Facebook “Confessions” pages

Below I’ve posted my interaction with Webber Wentzel media law guy  associate and information law expert Greg Palmer on the “[University Name Here] Confessions” Facebook page craze. His legalese comment was too long for my story on it, and I thought y’all would fancy a look at the legal issues relating to these pages. Enjoy! And please drop any thoughts in the comments. Also, answer the poll below!

Hi Greg,

Just regarding what we discussed this morning – what are some tips you would give to the moderators of this page with regard to possible defamation cases? Who is responsible for keeping such “confessions” and the comments made on them in check with regards to defamation? The Rhodes Confessions admins do appear to read every single submission because of how it comes through the Google forms submissions.

Also would you be able to explain what the procedure is with regards to the seemingly ‘anonymous’ admins of these pages and defamation? I’m referring specifically to their anonymity – how would a defamed person open a case against the admins?

Last thing – I wanted to get your thoughts on how the Rhodes Disciplinary Code could be used to shut down a page like Rhodes Confessions. Section 4.17 sets out the following:

(a) A student may not engage in any conduct which is offensive/defamatory of any staff member, student, or member of the

public.

(b) A student may not be insubordinate towards any member of the University staff.

(c) A student may not utter, distribute, display, show, screen or project disparaging, discriminating, and derogatory material

based on a person’s race, gender or sexual orientation – this includes hate speech.

(d) A student may not engage in conduct likely to bring the University, or any part of it, into contempt or disrepute. (my emphasis added)

(e) A student may not engage in any form of harassment or discrimination.

Would the Confessions page violate 4.17 (d), in your opinion? Could the page admins be subjected to a disciplinary hearing?

Kind regards,

Michelle Solomon

Reporter

_____________________________________________________

From: Greg Palmer
Sent: Friday, May 31, 2013 12:39 PM
To: Michelle Solomon
Subject: RE: Rhodes Confessions page

Hi Michelle

My understanding of the Rhodes Confessions page is that students submit their confessions via a Google form, which allows for anonymity (not even the moderators of the page are aware of who is behind the submissions).  Then, the moderators choose the content that is to be posted on to the page.

If people are defamed in an anonymous “confession”, therefore, they may unable to identify the person behind that confession in order to take legal action against that person. Dealing with this problem in the context of Facebook, the High Court in Johannesburg has found the moderator of the page to be responsible for the comments in this instance. So the moderators cannot escape liability on the basis that they themselves are not responsible for writing the confession.

The moderators also have the ability to remove comments that are posted by other users on the page using the comments feature.  To this extent (even where the person who is commenting may be identifiable), applying the common law principles in our law the moderator of the page may be liable for the content of those comments too.

The moderators of the confessions page may also themselves be anonymous. This creates an additional hurdle for a person seeking to hold the moderator liable under, for instance, the law of defamation. A potential plaintiff may, however, seek to compel Facebook, Inc to provide details of the moderator (which details are otherwise not available to the public). Facebook may be unwilling to provide this type of information in the absence of a court order compelling them to do so.

It is also conceivable that the clause of the disciplinary code that you have identified could be used by the University to take disciplinary action against the moderators of the page. It could not, however, be used as against Facebook or any other third party in order to “shut down” the page or force them to remove content on the page.

I have provided some information on the two court decisions below.

In the Dutch Reformed Church Vergesig v Rayan Soknunan (a judgment handed down on 14 May 2012 by the South Gauteng High Court), the court made the following findings:

  • The creator of a Facebook page is capable of regulating access to the Facebook page and censoring the postings placed on the page;
  • Individuals who post comments on a Facebook page are largely anonymous.  The court concluded that the effect of this anonymity is that individuals who post comments on a Facebook page may not be contactable and thus cannot be interdicted from publishing unlawful material.  According to the court “they are little different from persons who have attached a scrappy piece of paper to a felt notice board in a passage with a pin or stub of prestik”;
  • The creator of a Facebook page is akin to an individual who makes a notice board available to the public and therefore has an obligation to take down unlawful postings “much as a newspaper takes responsibility for the content of its pages”.

In H v W (a judgment handed down on 30 January 2013 by the South Gauteng High Court), the court again considered an interdict application in the context of Facebook. W had refused to remove a defamatory post despite having been requested to do so by H’s attorney.

  • W argued that H should have approached Facebook to remove the content (ie used the “report abuse” function).  The court however said that “if one wants to stop wrongdoing, it is best to act against the wrongdoers themselves.”
  • The court then stated the following, concerning the removal of postings on social media platforms upon request of an offended party: “Those who make postings about others on the social media would be well advised to remove such postings immediately upon the request of an offended party. It will seldom be worth contesting one’s obligation to do so. After all, the social media is about building friendships around the world, rather than offending fellow human beings. Affirming bonds of affinity is what being ‘social’ is all about.”

I hope this helps.

Regards,

Greg

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6 Responses

  1. Reblogged this on Oh WOW Mlu! and commented:
    “These are my confessions” . . .being shout out to Michelle Solomon for posting this.

    Like

  2. One can’t refer to a respected media lawyer as a “media law guy”.. It’s like someone calling you that “journalist chick”. Practicing what we preach is always a good start.

    Like

  3. I find it really strange that one would publish such page, I mean its crazy to the public, infact its becoming a major bad publicity for the University I’ve noticed that other University decided to join too. Quoting from other Confession from Rhodes, this other Guy Pretended to be a lacturer who apparently gets intimidated by girls who dresses inapropriate, its clear he faked the whole thing, legal actions must really be taken before it damages the reputation. Thank You

    Like

  4. Both judgments are reported on SAFLII which is freely available:
    http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAGPJHC/2012/97.html – DRC
    http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAGPJHC/2013/1.html – H v H

    It is in my view important to note that both of these cases concern applications for interdicts rather than cases seeking damages and both to a great extent enter the realm of discretionary relief from the superior courts. I foresee that in the medium to long term precedent and jurisprudence will emerge which makes the seeking of damages and the institution of trial proceedings an almost impossibility whilst motion proceedings involving clearly wrongful material will be an option irrespective of the media used for defamatory action.

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