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[2013] ZAGPJHC 1
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H v W (12/10142) [2013] ZAGPJHC 1; 2013 (2) SA 530 (GSJ); 2013 (5) BCLR 554 (GSJ); [2013] 2 All SA 218 (GSJ) (30 January 2013)
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REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
REPUBLIC OF SOUTH AFRICA
CASE NO: 12/10142
DATE:30/01/2013
In the matter between:
H,WS
…..............................................................................
Applicant
and
W,N
….................................................................................
Respondent
JUDGMENT
WILLIS J:
[1] The applicant seeks an order against the respondent in the
following terms:
Interdicting and restraining the respondent from posting any
information pertaining to the applicant on Facebook or any other
social media;
In the event that the respondent fails to comply to the
abovementioned order that the respondent then be placed under
arrest for non-compliance for a period of 30 days or a period as
determined by the Court;
Removing the postings so posted by the respondent from Facebook or
any other social site it might have been placed;
If and in the event that the respondent fails, alternatively
neglects, alternatively refuses to remove such postings from
Facebook or any other social media site upon which it might have
been posted that the Sheriff of Randburg be ordered and authorised
to remove the postings so listed by the respondent;
Costs of the application.
[2] The respondent is the author of the posting on Facebook
1
which has given rise to this litigation. It was posted on 27
February, 2012. Its rubric reads: ‘Letter to WH – for
public consumption’. WH is the applicant in this matter.
Included in the posting is the following:
I wonder too what happened to the person who I counted as a best
friend for 15 years, and how this behaviour is justified. Remember
I
see the broken hearted faces of your girls every day. Should we blame
the alcohol, the drugs, the church, or are they more reasons
to not
have to take responsibility for the consequences of your own
behaviour? But mostly I wonder whether, when you look in the
mirror
in your drunken testosterone haze, do you still see a man?
[3] It is common cause that the applicant enjoys a good party and
that he likes his social intercourse to be lubricated with alcoholic
beverages. The applicant is an active social networker in that he has
both a Facebook and Twitter
2
account on which he often communicates and therefore shares
information. The respondent has relied on these facts as grounds of
justification for publishing the posting in question. The respondent
has refused to remove the posting, despite having been requested
so
to do by the applicant, acting through his attorney.
[4] The applicant is an insurance broker who is separated from his
wife. The respondent had been a close friend of the applicant.
This
friendship extends back from the time before the applicant married
his wife. In terms of a Deed of Trust, the applicant and
his wife had
jointly appointed the respondent to be the guardian of their three
minor children in the event that both the applicant
and his wife died
or became incapacitated before their children attained their
majority. The applicant had provided the respondent
with guidance in
starting her current business venture. The respondent had lent the
applicant money to tide him over certain financial
difficulties.
[5] The applicant and his estranged wife are engaged in a divorce
action. The applicant’s estranged wife is presently residing
with the respondent. The applicant’s wife left him to stay with
the respondent on 14 January, 2012. The applicant pays for
the
children’s medical aid, extra mural classes, stationery and a
full time tutor to assist them. The three minor children
born of the
marriage between the applicant and his estranged wife are Z, born in
1997, M, born in 1999 and C, born in 2001. These
minor children have
been residing with the applicant for the last few months. The two
minor daughters are both ‘friends’
on Facebook with the
respondent. A ‘friend on Facebook’ is a ‘term of
art’ to which I shall later refer.
The applicant and the
respondent were friends on Facebook but, consequent upon the
applicant’s wife leaving him and moving
into the home of the
respondent, the applicant has ‘defriended’ the
respondent.
[6] The applicant complains that the posting in question publishes
information which portrays him as:
(i) A father who does not provide financially for his family;
(ii) A father who would rather go out drinking than caring for his
family;
(iii) A person who has a problem with drugs and alcohol.
The applicant’s attorney, in her letter dated 28 February 2012
addressed to the respondent, referred to the possibility of
a claim
for damages. The respondent claims that she posted the posting not to
defame the applicant but in order for the applicant
to reflect on his
life and on the road he had chosen.
[7] We have ancient, common law rights both to privacy
3
and to freedom of expression.
4
These rights have been enshrined in our Constitution.
5
The social media, of which Facebook is a component, have created
tensions for these rights in ways that could not have been foreseen
by the Roman Emperor Justinian’s legal team, the learned Dutch
legal writers of the seventeenth century (the ‘old
authorities’) or the founders of our Constitution.
[8] It is the duty of the courts harmoniously to develop the common
law in accordance with the principles enshrined in our Constitution.
6
The pace of the march of technological progress has quickened to the
extent that the social changes that result therefrom require
high
levels of skill not only from the courts, which must respond
appropriately, but also from the lawyers who prepare cases such
as
this for adjudication.
[9] Counsel for the parties were ad idem that there is a dearth of
South African case law on the question of the social media.
Counsel
are commended for responding so positively to my invitation that they
should further research certain questions posed by
me during the
course of their argument. Not only did they undertake their research
diligently and competently but also innovatively.
For example, I
received, via the electronic media, ‘footnotes to footnotes’
which contained entire copies of judgments
and extracts from the
learned texts to which reference was made in the usual sequence of
footnotes. It will not be possible to
do justice to the research of
counsel without penning an unduly lengthy judgment which would
detract from its accessibility to
those persons, other than the
litigants themselves, who use the social media. Both counsel referred
me to helpful articles on the
issue of Facebook. Especial mention
deserves to be made of those articles written by Anneliese Roos,
Professor of Private Law in
the University of South Africa, ‘Privacy
in the Facebook Era: A South African Legal Perspective’
7
and James Grimmelmann, Associate Professor of Law in the New York Law
School, ‘Saving Facebook’.
8
[10] In the case of Dutch Reformed Church Vergesig Johannesburg
Congregation and Another v Rayan Soknunan t/a Glory Divine World
Ministries
9
my sister Satchwell referred to the following extract from the case
of Largent v Reed and Pena:
10
Facebook is a free social networking site. To join a user must set up
a profile, which is accessible only through the user's ID
(email) and
a password. Facebook allows users to interact with, instant message,
email and friend or unfriend other users; to play
online games; and
to upload notes, photos and videos. Facebook users can post status
updates about what they are doing or thinking.
Users can post their
current location to other friends, suggest restaurant, businesses, or
politicians or political causes to 'like',
and comment or 'like'
other friends' posts.
Social networking websites like Facebook, Google and MySpace are
ubiquitous. Facebook which is only seven years old, has more than
800 million active users, 505 of whom are active on the site at
any given day (Facebook statistics as at 25 October 2011).
Facebook
has spawned a field of academic research, books and a movie. Social
networking websites also have a dark side –
they have caused
criminal investigations and prosecutions and civil tort actions . . .
Facebook has a detailed, ever-changing privacy policy. Only people
with user account can access Facebook. For all practical purposes,
anyone with an email account can set up a Facebook account. Users can
set their privacy settings to various levels, although a
person's
name, profile picture and user ID are always publicly available. At
the least restrictive setting, named 'public', all
800 million
users can view whatever is on a certain user's profile. At an
intermediate level, only a user's Facebook friends
can view such
information, and at the least restrictive, only the user can view his
or her profile. Facebook also currently allows
users to customize
their privacy settings.
Facebook alerts users that Facebook friends may 'tag' them in any
posting . . . 'You can either approve each post
individually
or approve all posts by your friends. If you approve a
post and later change your mind, you can always remove it from your
profile.
If you do not want someone to tag you in their posts, we
encourage you to reach out to them and give them that feedback. If
that
does not work, you can block them. This will prevent them from
tagging you going forward.' (Facebook Data Policy)
Therefore, users of Facebook know that their information may be
shared by default, and a user must take affirmative steps to prevent
the sharing of such information.
[11] The respondent contends that Facebook is an international social
networking site and service (‘SNS’) launched
in 2003 and
owned and operated by Facebook Inc.
11
Facebook is among the most popular SNS worldwide.
12
A social network service, an SNS, is:
a web-based service that allows individuals to:
construct a public or semi-public profile within a bounded system;
articulates a list of other users with whom they share a connection,
and
view and traverse their list of connections and those made by others
within the system.
The nature and nomenclature of these connections may vary from site
to site.
13
[12] The respondent goes on to contend that it is characteristic of
an SNS that a user creates what is known as a ‘profile’.
14
This is made up from personal information.
15
A user’s personal information encompasses basic information
such as where a person lives, his or her birthday and may include
political and religious affiliations views. The profile usually
extends to pictures, the user’s relationship status and family
members as well as tastes in music, books, films.
16
Customarily, it refers to the user’s educational background and
contains contact information such as e-mail addresses and
telephone
numbers.
17
[13] The user adds what are known as ‘contacts’ in order
to build relationships or a social network.
18
A user can ‘traverse’ to other users’ sites and
leave a private or public message on the site.
19
On Facebook a message may be posted on what is termed a user’s
‘wall’.
20
Everyone added as a ‘contact’ can view and respond to
such a message left on a ‘wall’.
21
[14] A perusal of readily accessible information on the internet as
well as Facebook’s own promotional literature and the
article
by Grimmelmann ‘Saving Facebook’
22
indicates that Facebook seeks to put existing friends in touch with
each other whilst also creating new friendships or networks
between
people. The founder of Facebook, Mark Zuckerberg, has said that
Facebook is all about being ‘social’.
23
This ‘social’ quality of the social media has legal
implications for publication therein (or should one, more correctly,
say ‘thereon’) to which I shall refer later.
[15] Facebook is a voluntary social network to which members
subscribe and submit information.
24
Facebook is distinguished from other online sites such as Twitter or
search engines such as Google in that in order to become a
member a
subscriber must accede and agree to Facebook’s Data Privacy
Policies and Terms.
25
Once subscribed as a user the user creates an ‘identity’.
26
In order to view a subscriber’s information one must be
connected to that subscriber as a ‘friend’ or a
‘contact’.
27
The ‘contact’ function allows the user to form or
maintain one-to-one relationships with other users.
28
By adding a ‘contact’ the user gives the contact access
to his or her ‘profile’.
29
This has the consequence that the user shares personal information
with the contact.
30
Sharing personal information with a ‘contact’ or friend
creates a sense of intimacy and strengthens personal ties.
31
[16] Facebook has created a worldwide forum enabling friends to share
information such as thoughts, links and photographs with
one
another.
32
These personal thoughts, and photographs are generally known as
‘posts’.
33
These ‘posts’ can either be ‘posted’ to a
friend on that friend’s page known as a ‘wall’
or
on the subscribers own ‘wall’.
34
On the user’s wall Facebook invites the user to comment.
35
A user’s wall is a personal space allowing for expression on
any subject of choice.
36
One’s ‘profile’ can be set so that one’s
‘contacts’ are notified of any new ‘posts’
on
one’s ‘wall’ and vice versa.
37
[17] A Facebook application called ‘photos’ also allows a
user to share photographs.
38
This may entail a process known as ‘tagging’.
39
‘Tagging’ a person means that the application allows one
to click on the photograph and then enter the person’s
name.
40
Tagging also enables one to post information which may be seen by
one’s Facebook friends.
41
These friends can forward such information to others.
42
[18] Facebook subscribers can also gain access to posts by other
Facebook subscribers depending on the privacy settings between
the
parties.
43
A party who shares the original post is thus not necessarily the
author thereof.
44
A subscriber can choose between various ‘privacy settings’
choosing to make information available.
45
Facebook states in its policies that, although it makes every effort
to protect a user’s information, these privacy settings
are
however not fool-proof.
46
[19] The act of disclosure of information is referred to as a user’s
‘visibility’.
47
Users control their ‘visibility’ by their ‘privacy
settings’.
48
There are three ‘privacy settings’:
‘Everyone’ which is a ‘public’ setting which
enables information and posts which are created to be available
to
all Facebook users, whether friends with that particular subscriber
or not;
‘Friends of friends’ which enables those who are in the
subscriber’s immediate network also to view the posts,
including photographs.
‘Friends only’ which allows only those people whom the
Facebook user has selected or whose friend requests the user
has
accepted, to see the posts.
49
[20] These privacy settings on Facebook enable a user to do the
following:
(i) To control the list of friends;
(ii) To determine when to ‘check in’;
Remove oneself from Facebook search results where one does not want
people to be able to search Facebook for information about
one;
Remove oneself from Google;
Avoid the photographic/video tag mistakes;
Enable HTTPS (internet security settings) where one can set up
security alerts and login alerts;
Make information about ‘contacts’ private;
Avoid embarrassing wall posts about oneself;
Gain access to information available to applications such as
‘Farmville’ and others;
Instant ‘Personalization’ through which one can stop
other websites from viewing one’s personal profile.
50
[21] Accordingly, although one can control one’s own Facebook
profile but there is no method, within the Facebook system
itself, by
which one can control what other people place on their profiles about
oneself and who can look at that.
[22] ‘Twitter’ is also commonly known as being part of
the social media.
51
It is an information sharing and micro-blogging site available on the
internet.
52
It was founded in 2006 by Jack Dorsey and Christopher ‘Biz’
Stone.
53
Registered subscribers ‘tweet’ ( which means send
messages or share information), limited to 140 characters or less,
to
their followers.
54
Twitter has 517 million users worldwide, sending some 175 million
‘tweets’ per day.
55
‘Tweets’ are publicly visible by default.
56
Another example of the social media is LinkedIn.
57
[23] ‘Google’, on the other hand, is an international
public search engine, owned by Google Incorporated, which collects
publicly accessible content and information on topics and either
hosts or provides links to that information.
58
Searches made by Google leave traces, called ‘cookies’.
59
When using a search engine through a browser program on a computer,
search terms and other information will usually be stored
on a
computer by default, unless erased.
60
The Internet Service Provider stores records with related search
items to an IP address and a time.
61
Google may keep logs of the same information.
62
Google searches webpages, images, news websites, videos and maps.
63
[24] In the case of Bernstein and Others v Bester and Others NNO,
64
the Constitutional Court held that ‘In South African law the
right to privacy is recognized as an independent personality
right
which the courts have included within the concept of dignitas’.
65
The Constitutional Court has also entrenched in our law the close
link between human dignity and privacy.
66
[25] In Janse van Vuuren and Another NNO v Kruger
67
Harms AJA (as he then was) said ‘to determine whether a prima
facie invasion of the right to privacy is justified, it appears
that
in general the principles formulated in the defences of justification
in the law of defamation ought to apply’. In view
of the
imprimatur given by the Constitutional Court to the linkages between
dignity and privacy, it may confidently be accepted
that this
approach of Harms AJA is correct.
[26] In the recent case of Mthembi-Mahanyele v Mail & Guardian,
68
the Supreme Court of Appeal (‘SCA’) affirmed the
principle that the test for determining whether the words in respect
of which there is a complaint have a defamatory meaning is whether a
reasonable person of ordinary intelligence might reasonably
understand the words concerned to convey a meaning defamatory of the
litigant concerned.
69
The words of the posting on Facebook which are in issue in this case
indeed contain the defamatory meaning of which the applicant
complains.
[27] In our law, it is not good enough, as a defence to or a ground
of justification for a defamation, that the published words
may be
true: it must also be to the public benefit or in the public interest
that they be published.
70
A distinction must always be kept between what ‘is interesting
to the public’ as opposed to ‘what it is in the
public
interest to make known’.
71
The courts do not pander to prurience. I am satisfied that it is
neither to the public benefit or in the public interest that
the
words in respect of which the applicant complains be published, even
if it is accepted that they are true.
[28] The next defence which needs to be considered is that of ‘fair
comment’. In Crawford v Albu
72
it was held that in order to qualify as ‘fair comment’,
the comment ‘must be based on facts expressly stated
or clearly
indicated and admitted or proved to be true’.
73
When a defence to or a ground of justification for a defamation is
raised in motion court proceedings, the assessment of facts
differs
from that set out in Plascon-Evans Paints Limited v Van Riebeeck
Paints (Pty) Limited.
74
The respondent, having raised a defence of fair comment, bears a
burden of rebuttal.
75
This burden presents the respondent with an insuperable difficulty
in the present case. She has been unable to justify her posting.
Furthermore, malice or improper motive by the perpetrator of the
comment also acts to defeat the defence of fair comment.
76
The background to the posting, together with the words themselves,
indicates that the respondent acted out of malice when she posted
the
offending comments.
[29] The posting by the respondent was unlawful. In coming to this
conclusion I have been mindful of the following which was said
by
Corbett CJ in Financial Mail (Pty) Ltd and Others v Sage Holdings
Limited and Another:
77
In demarcating the boundary between the lawfulness and unlawfulness
in this field (infringement of personal privacy) the Court
must have
regard to the particular facts of the case and judge them in the
light of contemporary boni mores and the general sense
of justice of
the community as perceived by the Court. Often a decision on the
issue of unlawfulness will involve a consideration
and weighing of
competing interests.
78
[30] What is to be done? The first two requirements for an interdict
set out in Setlogelo v Setlogelo
79
have comfortably been satisfied. Insofar as an interdict is
concerned, the applicant has a clear right to his privacy and the
protection of his reputation. The applicant has indeed been defamed.
What of the question of whether there is ‘the absence
of
similar protection by any other ordinary remedy’? The
respondent has drawn attention to the fact that, previously, the
applicant via his attorney, threatened to institute an action to
claim damages. The respondent suggests that, if she has found
to have
defamed the applicant, his proper remedy is damages.
[31] It is in respect of the remedy where infringements of privacy
take place in the social media that the common law needs to
develop.
The social media form a subset of the electronic media but are not
coextensive with it: the social media are all part
of the electronic
media but not all the electronic media are social media. The
electronic media were, almost certainly, beyond
the imagination of
the court when Setlogelo v Setlogelo was decided in 1914. Not only
can items be posted and travel on the electronic
media at a click on
a computer in a moment, in an instant, at the twinkling of an eye,
but also they can, with similar facility,
be removed therefrom. This
can also be done at minimal cost. The situation is qualitatively
different from the scenario where newspapers
have been or are about
printed in hardcopy and distributed. The law has to take into account
changing realities not only technologically
but also socially or else
it will lose credibility in the eyes of the people. Without
credibility, law loses legitimacy. If law
loses legitimacy, it loses
acceptance. If it loses acceptance, it loses obedience. It is
imperative that the courts respond appropriately
to changing times,
acting cautiously and with wisdom.
[32] Louis Brandeis, a former justice of the Supreme Court of the
United States of America, together with his professional partner
in a
Boston law firm, Samuel Warren, wrote an article in 1890 in the
Harvard Law Review in which they argued that: ‘Political,
social and economic changes entail the recognition of new rights, and
the common law, in its eternal youth, grows to meet the demands
of
socirty...’.
80
[33] In the case of Financial Mail (Pty) Limited v Sage Holdings
Limited
81
Corbett CJ said:
In a case of publication in the press of private facts about a
person, the person’s interest in preventing the public
disclosure
of such facts must be weighed against the interest of the
public, if any, to be informed about such facts.
82
[34] The historical reluctance of the courts to interdict publication
in the media has its roots only in the issues relating to
technology
and economics that arise from ‘stopping the press’ but
also a concern about the social consequences of stopping
the free
flow of news and information. This concern about the ‘chilling
effect’ of court orders on freedom of expression
has been
manifested in the case of National Media Limited v Bogoshi
83
recently decided in the SCA.
[35] Although major news items such as tsunamis, the outbreaks of war
and the election of presidents may travel through the social
media,
the social media are not primarily news media. As the founder of
Facebook said, it is all about being ‘social’.
The
electronic media is laden with news media. The social media are
qualitatively different from the electronic news media. Such
important news as may travel through the social media will also, in
most instances, be widely and readily available in the news
media as
well. Attitudes by the courts to the removal of items from the social
media may be justifiably different in the case of
the news media,
even where the news media appear in electronic rather than print
form. As Lior Jacob Strahilivetz has pointed out
in his publication,
A Social-Network Theory of Privacy,
84
mathematical and sociological analysis shows that the effect of
publication is much dependent on its context within the actual
media.
[36] As an instrument for spreading love, friendship, fun and
laughter around the world, Facebook is incontestably a force for
good. As the learned authors Grimmelmann and Roos have pointed out,
however, Facebook is fraught with dangers especially in the
field of
privacy.
85
Grimmelmann, although sceptical about the efficacy many other
instruments (including legislation) to address the dangers of
Facebook,
believes that appropriate interventions by the courts can
have a positive effect on the use of Facebook.
86
[37] As was said by both the Constitutional Court in S v Mamabolo
(eTV and Others Intervening)
87
and the SCA in National Media v Bogoshi
88
and Van Der Berg v Coopers and Lybrand Trust (Pty) Limited and
Others,
89
resolving the tensions between every human being’s
constitutionally enshrined rights both to freedom of expression and
to
dignitas is all about balance. In the case of Le Roux v Dey
Freedom of Expression Institute and Another as amici curiae)
90
the Constitutional Court emphasized the need to take into account the
context in which a publication occurs.
91
[38] The respondent has contended that the applicant could have
approached Facebook, reported the abuse and asked for the posting
to
be blocked. Her counsel, Ms Van Aswegen, submitted that, as a
subscriber, the applicant must know of Facebook’s Data Policies
and of the fact that he can report abuse to Facebook. There is
nothing before me to assure me that Facebook would comply with such
a
request. Grimmelmann argues that it is better for the courts to focus
on users rather than Facebook itself if intrusions on privacy
are
effectively to be curbed.
92
I agree: if one wants to stop wrongdoing, it is best to act against
the wrongdoers themselves.
[39] As is to be expected of a case that was decided in 1914 on so
vital a legal issue as the obtaining of an interdict and which
has
been affirmed consistently since then, the question of what is meant
by ‘the absence of similar protection by any other
ordinary
remedy’ in Setlogelo v Setlogelo has been much considered.
93
?
As Colin Prest notes, Van der Linden used the words ‘geen ander
gewoon middel…waar door men met het zelfde gevolg
kan geholpen
worden’ and ‘geen ander ordinair middel…waar door
men met het zelfde effect kan geholpen worden’.
94
(Koopmans Handboek (Institutes) 3.1.4.7 and Judicieele Practijcq
2.19.1). In the circumstances of this case, I am satisfied that
by
issuing an interdict that the respondent is to remove the posting,
the court will be providing a remedy for which there is no
other by
which the applicant, with the same effect, ‘kan geholpen
worden.’ Besides, the interdict which I propose to
make will
resolve the issue without the needless expense, drama, trauma and
delay that are likely to accompany an action for damages
in a case
such as this.
[40] Although judges learn to be adept at reading tealeaves, they are
seldom good at gazing meaningfully into crystal balls. For
this
reason I shall not go so far as ‘interdicting and restraining
the respondent from posting any information pertaining
to the
applicant on Facebook or any other social media’. I have no way
of knowing for certain that there will be no circumstances
in the
future that may justify publication about the applicant.
[41] It seems that the relief which has been sought which relates to
placing the respondent under arrest, if she fails to comply
with the
court’s order, is ancillary to the making of a continuing order
of prohibition on postings in the social media.
In any event, I shall
also not go so far as making an order, at this stage, that in the
event that the respondent fails to comply
with the court’s
order that the respondent then be placed under arrest for
non-compliance for a period of 30 days or any
other period. At the
moment I have no way of knowing whether or not the respondent may
become incapable of complying with the court’s
order. Besides,
it is unseemly for the courts to wield their authority with a
sledgehammer. Everyone knows that life can be made
uncomfortable for
those who do not comply with court orders.
[42] I am not sure that it falls within the competence of the Sheriff
of Randburg to remove the postings should the respondent
fail to do
so. At this stage I shall make no order in this regard but the
applicant is welcome to approach me again on this issue
should it
become necessary.
[43] 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.
[44] It is to be anticipated that, in response to this exhortation to
remove offending comments from Facebook when called upon
to do so,
there will be the following question: ‘but what about public
figures?’ A few observations in this regard
may be appropriate
in order to avoid misunderstandings. Corbett CJ said in Financial
Mail (Pty) Ltd and Others v Sage Holdings
Limited and Another,
95
that every case should be decided in the light of the boni mores of
society.
96
‘Boni mores’ means, literally, ‘good
customs/conventions’ but in this context it may more accurately
be
translated as ‘society’s sense of justice and fair
play’. Ms Engelbrecht, counsel for the applicant, strongly
relied the chapter on privacy in Johann Neething’s The Law of
Personality.
97
In that work he refers to a short article of his, written many years
ago, in which he supports the standard that, in matters relating
to
privacy, parties persons must act reasonably (‘op ’n
redelike wyse’).
98
[45] The ‘truth plus public benefit/interest’ test will
generally protect both public figures and those who write about
them
provided it is remembered that it is not in the public interest that
every titbit of information and not every morsel of salacious
gossip
about a public figure be made publicly known. There is legitimate
public interest in the affairs of public figures. Legitimate
interest
in what they do does not overshadow the fact that public figures have
the same human rights as everyone else. They too
enjoy a
constitutional right to privacy. Not only does our law protect every
person’s right to dignitas (inner tranquillity)
99
but also to fama (reputation).
100
The ‘fair comment’ test will generally come to the aid
of those who wish to express themselves lavishly and perhaps
even
extravagantly. Trenchant commentaries on the performances of
politicians as politicians, entertainers as entertainers, musicians
as musicians, artists as artists, writers as writers, poets as poets,
sports stars as sports stars will generally pass legal muster,
even
if posted in the social media. When it comes to freedom of expression
in South Africa, there are oceans in which to swim and
upon which to
sail as freely as the wind blows.
[46] Above all, it is well to remember what Harms JA said in National
Media Limited v Jooste,
101
after referring to American jurisprudence, that the question of
whether private facts are worthy of protection is determined by
reference to ‘ordinary or reasonable sensibilities and not to
hypersensitivities’.
102
Grimmelmann sagely invokes the ancient maxim de minimis non curat lex
(the law is not concerned with trivia).
103
Delicate lilies are unlikely to bloom under the awnings of the courts
when it comes to claims of damaged reputations.
[47] The applicant has been substantially successful inasmuch as he
came to court seeking an interdict and has obtained it. He
is
entitled to his costs. The following is the order of the court:
(a) The respondent is to remove all postings which she has posted on
Facebook or any other site in the social media which refer
to the
applicant.
(b) The respondent is to pay the applicant’s costs in this
application.
DATED AT JOHANNESBURG THIS 30th DAY OF JANUARY, 2013
______________________
N. P. WILLIS
JUDGE OF THE HIGH COURT
Counsel for the Applicant: Adv. T. Engelbrecht
Counsel for Respondent: Adv. S. Van Aswegen
Attorney for the Applicant: Wilkins Attorneys
Attorney for the Respondent: JNS Attorneys
Dates of hearing: 19 October, 2012
Date of judgment: 30 January , 2013
1
Facebook is a popular, free, social networking
website on the internet which enables registered users to send
messages to one
another, upload photographs and videos, keep in
touch with one another and send information about oneself (and
others) to other
registered users. This definition has been adapted
(in an attempt to conform to the requirements of legal precision)
from that
given by Margaret Rouse on
whatis.techtarget.com
(Accessed 17 January 2013). It has 900 million users worldwide, 23%
of whom visit their ‘Facebook page more than fives
times a
day. See:
www.internetworldsats.com/facebook.htm
(Accessed 17 January 2013). 250million photographs are loaded on to
Facebook daily. See, again:
www.internetworldsats.com/facebook.htm
(Accessed 17 January 2013). In South Africa there are almost six
million Facebook users. See
http:/www.socialbakers.com/facebook-statistic
(Accessed 17 January 2013). The largest single age group of users is
between 25 and 34 years old, consisting of some 1,8 million
persons.
See, again:
http:/www.socialbakers.com/facebook-statistic
2
‘Twitter’ is dealt with in more
detail in paragraph [22] below.
3
It may interest those who take pride in our Roman-Dutch common law
heritage that it was not until 1890 that a right to privacy
was
recognised by the courts in the United States of America. The reason
for this was that a right to privacy was not recognized
in English
common law, which was the law which was inherited in the USA. See:
Anneliese Roos,
Privacy in the Facebook Era: A South African
Legal Perspective
(2012) 129
SALJ
375.
Our rights to
privacy derive from the
actio iniuriarum
, an instrument that
has descended to us from Roman law. That the
actio iniuriarum
protects privacy was first recognised in the South African courts in
the case of
O’Keeffe v Argus Printing and Publishing
Company Limited
1954 (3) SA 244
(C) at 247H to 249E, especially
at 249C. See, once again: Anneliese Roos,
Privacy in the Facebook
Era: A South African Legal Perspective
(
supra
) at p377.
4
See, for example,
National
Media Limited and Others v Bogoshi
1998 (4) SA 1196
(SCA) at 1210F.
5
Section 14 of our Constitution provides that:
‘
Everyone has the right of privacy, which
includes the right not to have –
a) their person or home searched;
b) their property searched;
c) their possessions seized; or
d) the privacy of their communications infringed.’
Section 16 of our Constitution asserts that ‘Everyone
has the right to freedom of expression which includes – (a)
freedom of the press and other media; (b) freedom to receive or
impart information or ideas...’. The importance of this right
has been affirmed on several occasions by the Constitutional Court.
See,
South African National Defence Union v Minister of Defence
and Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC) at paragraph
[7]
;
S v
Mambolo (eTV and Others Intervening)
[2001] ZACC 17
;
2001 (3) SA 409
(CC) at
paragraph
[37]
Islamic Unity Convention v Independent
Broadcasting Authority and Others
2002 SA 294
(CC) at paragraphs
[15] to [19] and
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA
401
(CC) at paragraph
[21]
;
De Reuck v Director of Public
Prosecutions, Witwatersrand Local Division, and Others
[2003] ZACC 19
;
2004 (1)
SA 406
(CC) at paragraphs [46] to [50];
Laugh it Off Promotions
CC v SAB International
(
Finance
)
BV t/a SABMARK
International
(
Freedom of Expression Institute as
Amicus
Curiae
)
[2005] ZACC 7
;
2006 (1) SA 144
(CC);
Johncom Media Investments
Limited v M and Others
2009 (4) SA 7
(CC) at paragraph [1];
Biowatch Trust v Registrar, Genetic Resources
2009 (6) SA 232
(CC) at paragraph [27];
Br
ü
mmer v Minster for
Social Development and Others
2009 (6) 323 (CC) at paragraph
[63];
Bothma v Els and Others
2010 (2) SA 622
(CC) at
paragraph [92]In the
Khumalo and Others v Holomisa
case, at
paragraph [28]. O’Regan J, delivering the unanimous judgment
of the Constitutional Court said: ‘The right
to privacy,
entrenched in section 14 of the Constitution, recognises that human
beings have the right to a sphere of intimacy
and autonomy that
should be protected from invasion. This right serves to foster human
dignity. No sharp lines can be drawn between
reputation,
dignitas
and privacy in giving effect to the value of human dignity in our
Constitution’. See also:
Bernstein and Others v Bester and
Others
[1996] ZACC 2
;
1996 (2) SA 751
(CC); and
Mistry v Interim Medical
and Dental Council of South Africa and Others
1998 (4) SA 1127
(CC)
.
6
Sections 39 (2) and 173 of the Constitution of the Republic of South
Africa, 1996
7
(2012) 129 SALJ at 375
8
James Grimmelmann,
Saving Facebook
,
2009
(94) Iowa Law Review 1137
at 1137-1205
9
2012 (6) SA 201
(GSJ)
at paragraph [42]
10
39
th
Judicial District of Pennsylvania, Franklin County 2009-1823 at 3-5
11
See Anneliese Roos’ article,
op
.
cit
.
12
See Anneliese Roos’ article,
op
.
cit
.
13
Boyd DM & Ellison N “Social network sites: Definition,
history and scholarship” 2007 (vol
13
no1) Journal of Computer- Mediated Communication article 11.
See
also Anneliese Roos’ article,
op
.
cit
.
14
See Anneliese Roos’ article,
op
.
cit
.
15
See Grimmelmann’s article,
op
.
cit
.
16
See Grimmelmann’s article,
op
.
cit
.
17
See Grimmelmann’s article,
op
.
cit
.
18
See Grimmelmann’s article,
op
.
cit
.
19
See Grimmelmann’s article,
op
.
cit
.
20
See Grimmelmann’s article,
op
.
cit
.
21
See Grimmelmann’s article,
op
.
cit
.
22
See Grimmelmann’s article,
op
.
cit
.
23
See
techcrunch.com/2012/09/11/
zuckerberg
-the-leader
(Accessed 24 January 2013).
24
See Grimmelmann
‘s article
,
op
.
cit
. especially at
1152-1160
25
Facebook’s Privacy Policies and Terms.
26
See Anneliese Roos’ article,
op
.
cit
.
See Grimmelmann’s article,
op
.
cit
.
27
Ibid
.
28
Ibid
.
29
Ibid
.
30
Ibid
.
31
Ibid
.
32
Ibid
.
33
Ibid
.
34
Ibid
.
35
Ibid
.
36
Ibid
.
37
Ibid
.
38
See
Anneliese Roos’ article,
op
.
cit
. p383 to 385
39
Ibid
.
40
Ibid
.
41
Ibid
.
42
Ibid
.
43
See Grimmelmann’s article,
op
.
cit
.
44
Ibid
.
45
Ibid
.
46
See
Anneliese Roos’ article,
op
.
cit
., footnote 48
47
See Anneliese Roos’ article,
op
.
cit
.
p386-390
48
See Anneliese Roos’ article,
op
.
cit
.
p386-390
49
Allfacebook.com/facebook-privacy-settings_b31836
50
Ibid
.
51
See Anneliese Roos’ article,
op
.
cit
.
52
See:
Mashable.com/category/
twitter
/
(Accessed 24 January 2013)
53
Ibid
.
54
Ibid
.
55
See:
www.internetworldsats.com/facebook.htm
(Accessed 17 January 2013).
56
See:
Mashable.com/category/
twitter
/
(Accessed 24 January 2013)
Ibid
.
57
See Anneliese Roos’ article,
op
.
cit
.
It is appropriate that I disclose that I have not ‘joined’
Facebook but have subscribed to LinkedIn. All three of
my children
are ‘on Facebook’. There are two reasons why I am not a
subscriber to Facebook. The first is that there
is a considerable
body of opinion among judges both in South Africa and abroad that
Facebook necessitates too public a disclosure
of private facts than
is appropriate in the case of judges. Unless a matter of high moral
principle is involved I think it better
that when it comes to issues
that may affect the reputation of judges collectively, it is better
that they judges should try
to operate ‘in phase’ with
one another, rather than venture upon frolics of their own. The
second is that I have
been much affected by listening to a radio
interview with a celebrity in which he expressed his horror at the
thought of his
father inviting him to be a ‘Facebook friend’.
I have the impression that my own children would be embarrassed if I
were to ‘join’ Facebook. Through my being a subscriber
to LinkedIn, I have been able to experience, first hand, the
benefits of the social media. I have re-established contact with
long lost friends all around the world, with some of whom I
last had
exchanges more than 30 years ago. I also have the comfort and
security of belonging to a worldwide network of highly
influential
people.
58
See,
Simonwillison.net/2004/apr/5/whatisgoogle/
and
www.stateof
search.com/
what-is-google
-really-all-about/
(BOTH accessed on 17 January 2013)
59
See,
www.google.com/goodtoknow/data-on-the-web/cookies/
and
www.google.co.za/policies/privacy/ads/
(BOTH accessed on 17 January 2013)
60
See,
Simonwillison.net/2004/apr/5/whatisgoogle/
and
www.stateof
search.com/
what-is-google
-really-all-about/
(BOTH accessed on 17 January 2013)
61
Ibid
.
62
Ibid
.
63
Ibid
.
64
1996(2) SA 751 (CC) at paragraph [68]
65
At paragraph [68]
66
See
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
1999 (1) SA 6
(CC)
where it was said at paragraph [30]: ‘This case illustrates
how, in particular circumstances, the rights of equality
and dignity
are closely related, as are the rights of dignity and privacy’;
and
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC)
at paragraph
[21]
; and
De Reuck v Director of Public Prosecutions,
Witwatersrand Local Division, and Others
[2003] ZACC 19
;
2004 (1) SA 406
(CC) at
paragraphs [46] to [50]..
67
[1993] ZASCA 145
;
1993 (4) SA 842
(A) at 850
68
2004 6 SA 329
(SCA)
69
Ibid
. at paragraph [25]
70
See
Financial Mail
(Pty) Limited v SAGE Holdings Limited
[1993] ZASCA 3
;
1993
(2) SA 451
(A) at 464C;
Argus Printing & Publishing
Company Limited and Others v Esselen’s Estate
1994
(2) SA 1
(A) at p25B-E;
National Media Limited and Others
v Bogoshi
1998 4 SA 1196
SCA at p1208G-J
71
Ibid
.
72
1917 AD 102
73
At 114
74
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at p634E-635C
75
See:
Borgin v De Villiers and Another
1980 (3) SA 556
(A);
Marais v Richard en ’n Ander
1981 (1) SA 1157
(A);
National Media Limited and Others v Bogoshi
1998 (4) SA 1196
at p1218E-F;
Khumalo v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
CC at
paragraph [18].
76
See
Marais v Richard
en ’n Ander
1981 (1) SA 1157
(A) at p1170A-C and
Jansen Van Vuuren
and Another NNO v Kruger
[1993] ZASCA 145
;
1993 (4) SA
842
(A) at 850H-I.
77
[1993] ZASCA 3
;
1993 (2) SA 451
(A)
78
At
462F -463A
79
1914 AD 221
at 227
80
Samuel Warren and Louis D Brandeis ‘The
right to privacy’ (1890) 4
Harvard
L R
193 At 195. See also, Anneliese
Roos’ article,
op
.
cit
.
at p376
81
[1993] ZASCA 3
;
1993 (2) SA 451
(A)
82
At p462I-J
83
1998 (4) SA 1196
(SCA) at p1210G-I
84
72. V.CHI. L. REV. 919, 923-24
85
Op
.
cit
.
(
supra
)
86
Op
.
cit
.
(
supra
)
87
[2001] ZACC 17
;
2001 (3) SA 409
(CC) at p429I-431B
88
1998 (4) SA 1196
(SCA) at p1207D
89
2001(2) SA 242 (SCA) at paragraph [23]
90
2011 (3) SA 274
(CC)
91
See paragraphs [39] to [51]
92
Op
.
cit
.
p1195
93
References to these cases can conveniently be found in
Herbstein
and Van Winsen,’s The Civil Practice of the Supreme Court of
South Africa
, 4
th
edition (1997); Juta’s: Cape
Town. at pp.1063-1077 and C.B. Prest,
The Law and Practice of
Interdicts
, (1996); Juta’s: Cape Town, at pp 45-48. An
already lengthy judgment will needlessly be extended by referring to
all these
cases individually.
94
Ibid
.
95
[1993] ZASCA 3
;
1993 (2) SA 451
(A)
96
Financial Mail v Sage Holdings
(
supra
)
at
p
462F – 463B; Neethling (
supra
) at p246.
97
Neethling, J. (2005)
The Law of Personality,
2
nd
edition, LexisNexis Butterworths: Durban, Chapter 8,
Right to
Privacy
.
98
1977
THRHR
101
at 104. He wrote a commentary on
S
v
I
1976 (1) SA 781
(RA). Neethling,
in his
The Law of Personality
(at p246) also endorses
what Corbett
CJ said in
Financial Mail (Pty) Ltd and
Others v Sage Holdings Limited and Another
(
supra
at
at
p
462F – 463B) about the
boni mores
test.
99
In
Melius De Villiers’ (1899),
The
Roman and Roman-Dutch Law of Injuries: A Translation of Book 47,
Title 10, of Voet’s Commentary on the Pandects
; Juta’s:
Cape Town
at p24, he describes dignity as ‘that
valued and serene condition’ and goes on to say that ‘Every
person has
an inborn right to the tranquil enjoyment of his peace of
mind,..’. This passage at p24 (or relevant portions thereof)
has been referred to with frequent approval by the courts. See, for
example,
Minister of Police v Mbilin
i
1983 (3) SA 705
(A) at 715G-716A;
Jacobs
en ’n Ander v Waks en Andere
[1991] ZASCA 152
;
1992 (1) SA 521
(A) at 542C-E;
Argus
Printing and Publishing Company Limited v Inkatha Freedom Party
[1992] ZASCA 63
;
1992 (3) SA 579
(A) at 585E-G;
Argus
Printing and Publishing Company Limited v Esselen’s Estate
1994 (2) SA 1
(A) at 23D-H.
100
See, for example,
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA
401
(CC) at paragraphs [17], [18] and [19].
101
[1996] ZASCA 24
;
1996 (3) SA 262
(SCA)
102
At p270I-J
103
Op
.
cit
.
p1197