In a judgment handed down on 14 May 2012 in Dutch Reformed Church Vergesig Johannesburg Congregation v Rayan Sooknunan t/a Glory Divine World Ministries, the South Gauteng High Court provided important guidance regarding material published on the social network Facebook.
The case concerned a property dispute between two churches, the Dutch Reformed Church (DRC) and Glory Divine World Ministries (Glory Divine). The dispute arose when the DRC decided to sell the property which Glory Divine had rented from them for several years. The DRC rejected an offer to purchase by Glory Divine and sold the building to an Islamic academy.
Glory Divine decided to lobby against this decision by contacting the media and by also making use of its Facebook page. Various members of the public participated by publishing posts and comments on Glory Divine's Facebook page.
The DRC and one of its ministers (the minister) sought an urgent interdict to prevent Glory Divine from publishing certain statements that they alleged were defamatory and incited the public to harm DRC's minister.
The court found that the Facebook postings did not constitute incitement to harm the minister, and as result the interdict application was largely unsuccessful. The court did make other findings, however, that are of greater interest than the outcome of the interdict application. These include:
- 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 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 these individuals "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"; and
- 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".
The above approach by the court was applied in the context of an interdict and also did not relate to a media defendant. If a similar approach is adopted by the courts when dealing with a claim against a media organisation it could pose serious challenges for the media.
Firstly, a Facebook page is fundamentally different from a newspaper because there is no editorial control over the content that is posted by members of the public on a Facebook page. At best, control can be exercised by the creator of a Facebook page after a posting is brought to its attention. Consequently, the comparison between a Facebook page and a newspaper is flawed.
Secondly, the court's observation that the creator of a Facebook page can control the content on the page may make sense in the context of an individual's Facebook page. However, in the context of a media organisation the application of this principle would be highly problematic as it implies that media organisations have an obligation to check the postings placed on their Facebook pages for defamatory or otherwise unlawful content and to remove it.
Thirdly, the court's tacit assumption that liability is best placed with the creator of the Facebook page instead of the person who posts a comment because such individuals are largely anonymous is not entirely free from criticism. Many Facebook subscribers use their real identity and there are legal avenues available to identify anonymous individuals.
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