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[2013] ZAGPPHC 243
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Isparta v Richter and Another (22452/12) [2013] ZAGPPHC 243; 2013 (6) SA 529 (GNP) (4 September 2013)
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REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
Case
No.: 22452/12
DATE:04/09/2013
In
the matter between:
ISPARTA
….............................................................................................................................
PLAINTIFF
and
RICHTER
..............................................................................................................
FIRST DEFENDANT
OOSTHUIZEN
................................................................................................
SECOND
DEFENDANT
JUDGMENT
THE NATURE OF FACEBOOK
[1]
The plaintiff, a senior manager employed by the South African Revenue
Service, sued the defendants for defamation arising from
the
“posting" of certain comments on the First Defendant's
"Facebook Wall”.
1
[2]
There are several Social Networking Services (SNS) websites available
on the Internet, of which Facebook is the most popular
in South
Africa Anneliese Roos has described the Facebook process in an
informative article, Privacy in the Facebook Era: A South
African
Perspective
2
.
Willis J referred liberally to this article in Herholdt V Wills
3
.
In a footnote, Willis J described Facebook as follows:
“
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 themselves (and others) to other registered
users "
According
to statistics accessed by Willis J on 17 January 2013, it has 900
million users worldwide, 23% of whom visit their Facebook
page more
than five times a day. In what follows, I have been guided by the
article of Anneliese Roos and the judgment in Herholdt
v Wills.
[3]
The features of Facebook have been abundantly described by Roos and
Willis J and there is no need to repeat them in detail.
However, for
the purposes of this judgment I shall briefly explain the features
that have a bearing on the issues in this matter.
[4]
The purpose of Facebook is to provide a platform which allows
subscribers to build social networks in which the members of the
network can interact with one another. Anyone with a valid e-mail
address can join Facebook Members of Facebook subscribe by creating
what is known as a “profile”. The user can choose what
personal information to disclose, but since the purpose of Facebook
is to make contact, or renew contacts and to create a social network,
a user needs to give enough information to enable other users
to find
him or her and to decide whether she or he would like to join that
user's network. Information that is typically supplied
includes the
user’s contact details, age, gender, relationship status,
education, interests, tastes in music, books and much
more. A user
builds a social network by adding any other Facebook subscribers as
“friends” or “contacts”.
[5]
Users interact by “posting” private or public messages on
their Facebook “walls”. Users can traverse
to the sites
of other users in their network of contacts and view messages on
other users’ walls. They may react to messages
posted by
indicating whether they liked the posting or by posting a response
Everyone who has been added as a contact by a user
can view messages
posted on that user's wall
[6]
A user's profile is always visible to every Facebook user, but a user
can control his or her “visibility’’
by choosing
“privacy settings”. Items posted on the user’s wall
are only accessible to persons within the scope
of the user’s
privacy setting. There are three privacy settings, “everyone”,
“friends of friends”
or “friends only”. The
default setting is “everyone”. A “friend” is
someone that the user has
listed as a “contact".
[7]
A user may “tag” another user to any postings placed on
his or her wall. The
name
of the tagged user will then appear at the end of the user's message
as “with ... (tagged user’s name)”.
The message
would also appear on the wall of the tagged
person.
The tagged person’s consent is not required, but he or she may
remove his or her name from the message.
BACKGROUND
[8]
The defendants closed their case without leading evidence In relating
the salient facts, I only have the plaintiff’s version.
[9]
The plaintiff and the second defendant were married to each other,
but were divorced after acrimonious litigation. The plaintiff
and the
second defendant are still engaged in consequent litigation. The
plaintiff obtained an order for the committal of the second
defendant
for contempt of court. She also obtained an interim interdict against
him, with a return date in September 2013. The
ongoing litigation
concerns the second defendant’s alleged failure to comply with
a settlement agreement entered into between
the plaintiff and the
second defendant in their divorce proceedings.
[10]
The plaintiff has remarried and the first and second defendants have
married each other. The plaintiffs husband has a son aged
16, who
lives with her and her husband. She also has two children from her
marriage with the second defendant. They are a girl,
P-A, then aged
6, and a boy, G, aged 4
[11]
It is against this background that the issues must be decided THE
FACTS
[12]
On 13 April 2012 the first defendant posted several comments on her
Facebook wall and in each case tagged the second defendant.
The
plaintiff claims that two of
them
are defamatory. I shall, however, quote all the postings in order to
place them in context.
[13]
The first one, which the plaintiff alleges is defamatory, was posted
on 13 April 2012 at 13:06: “Liewe L [The plaintiffs
first name
is Louise]
Gelukkig
weet ek jy kry die boodskap aangesien jy my facebook met valk oe
dophou (en jy weet di skoen paa!) . en aangesien ek niks
het om weg
te steek nie moet jy dit tog gemet mteendeel eks bly dat jy my doen
en late so interessant vind..maar voor jy weer aantuigings
maak oor
dinge waarvan jy duidelik absoluut niks weet ni stel ek voor jy kry
jou feite agter mekaar want die keer het jy op- geeindig
met n
bloedrooi gesig!! - with P O.”
Three
people reacted by stating that they “liked it”. One text
response was posted:
“
R
N LOLM' Goed gese! :)"
A
certain J V commented on this post at 13:37 stating:
“
Ai,
wat he ons gemis. julle moet bietjie kom draai en die nuus deel ons
lewers lets gemis hehehe”
The
first defendant replied at 13:42:
“
Ons
sal moet kom kuier voor ons so besig raak met ons populere leefstyl
dat ons julle sal moet boek en geld vra ..lol...
Jy
weet net m hoeveel presies julle gemis het nie.”
[14]
Thereafter, at 14:37, the first defendant posted a personal message.
In the context of all the messages, this can only have
been addressed
to her husband, the second defendant. It is as follows:
“
Engel
ons is soos celebrities, whoohooo.. ons lewens word dopgehou en dan
word di vreemste aantuigings daarvan gemaak...hehehe een
van di dae
is ons in die koerant ook dalk selfs in die ppl magazine... dan word
ons tweets ook gepost...lol Lief jou my skat dankie
datjy soveel
opwinding in my lewe bring., xxx
Ons
sal dalk n press release moet doen waar ons onder eed die feite stei
mmmh watse skoene sal ek daarvoor aan trek saam watse rokkie??11
Hehehehe:-P”
Read
in the context of the first posting, the second defendant seems to
ridicule the plaintiff's alleged interest in her private
life. As I
have said, she did not testify to explain why she found it necessary
to deride the plaintiff in a public forum However,
certain newspaper
reports were published regarding a court order that the first
plaintiff had obtained against the second defendant,
interdicting him
from coming within 100m of the plaintiff's home. The names of the
parties had been omitted in the reports. The
first defendant’s
sarcastic conceit about her and the second defendant’s
celebrity status probably stems from these
reports.
[15]
At 15:00. first defendant posted the following:
“
Adele
gaan jy kom help g en p-a se kamers kom oordoen?"’ Ek het
die moosite goed bestel. wat nou uiteindelik gekom het!!”
It
has not been disclosed who this “Adele” is, probably a
personal friend of the first defendant. The relevance of this
posting
is that it identifies the plaintiffs two children by name.
[16]
At 16:38, the first defendant posted the second comment which is
alleged to be defamatory:
“
Aan
alle mammas en pappas...wat dink julle van mense wat stief tiener
boeties toelaat om klein sus- sies (6) te bad elke aand .
net omdat
dit di ma se lewe vergerieflik??? - witn P O”
The
following comments were posted in response:
“
L-M
C Not a chance”
“
C
Polite Oh hell nee sal dit nooit toelaat me”
[17]
The context of the last posting by the second defendant is the
following:
After
the divorce of the plaintiff and the second defendant, the second
defendant worked abroad. The plaintiff said that she wanted
to keep
the second defendant involved with their children and from
time-to-time sent him photographs, informed him of their development
and shared poignant moments in their lives with him She submitted a
transcript of an electronic chat between her and the second
defendant. It started as an amiable discussion in which the plaintiff
told the second defendant how cute the children were and
shared
little anecdotes with him. The second defendant seemed depressed and
said that it was not going “great", but
that he would send
an e-mail. She forwarded three photographs to him of the children in
the bath One photograph shows a white board
standing on a clothes
basket with simple addition sums in a red marker pen, and the
plaintiff’s stepson demonstrating something.
Another shows the
plaintiffs stepson in the bathroom, apparently being pelted by one of
the children with a wet sponge. The plaintiff
said to the second
defendant regarding the photographs, “Die pampoene (apparently
a pet name for the children) het n wiskun-
deles in die bad gekry”.
This is obviously a jovial domestic moment Only a depraved mind can
see impropriety therein. The
plaintiff believes that these
photographs inspired the first defendant to post the second comment.
THE ISSUES
[13]
Counsel for the defendants admitted on their behalf that the comments
had been posted on the first defendant’s Facebook
wall and that
the second defendant had been tagged to the comments.
[14]
The plaintiff alleges in her particulars of claim that both the
comments, quoted in paragraphs [13] and [16], are defamatory
of her.
The first one she claims, is disparaging and belittles her. She
claims that the second one is malicious and aimed at damaging
her
reputation by implying that the plaintiff allows inappropriate
interaction between her teenaged stepson and her minor daughter
and
that she is a bad mother.
Do
the comments refer to the plaintiff?
[20]
A plaintiff in a defamation action must prove that the impugned
statements are directed at him or her. If a plaintiff is not
directly
referred to in the defamatory statement, the plaintiff must plead the
circumstances which would have identified him or
her to the
addressees.
4
Counsel for the defendants made much of the fact that the plaintiff
had not pleaded any such circumstances.
[21]
It was put to the plaintiff in cross-examination that the first
defendant has three persons by the name of L on her network
and that
a reasonable reader would not associate the comment with her. The
plaintiff replied that she had no knowledge of persons
on the second
defendant’s network that shared her first name, but conceded
that it was possible. She testified, however,
that many of the
persons on the first and second defendants’ networks know her
and are aware of the issues between her and
the second defendant.
They would have no difficulty inferring that the comment was
addressed to her. She testified that in any
event, three people had
posted comments, which indicates that they knew to whom the first
defendant referred. Had they not known
that, they would not have
responded, as it would have been meaningless to them.
[22]
The second comment does not refer to the plaintiff by name
[23] The test to determine whether
defamatory material refers to the plaintiff where the plaintiff is
not directly named was set
out as follows by Viscount Simon LC in
Knupffer v London Express Newspapers Ltd
5
“
There
are two questions involved in the attempt to identify the appellant
as the person defamed. The first question is a question
of law - can
the article, having regard to its language be regarded as capable of
referring to the appellant? The second question
is a question of fact
namely does the article in fact lead reasonable people, who know the
appellant, to the conclusion that it
does refer to him"? Unless
the first question can be answered in favour of the appellant, the
second question does not arise
..."
The two questions involved in this
case are therefore: (a) can the words be regarded as capable of
referring to the plaintiff? and
(b) did the words in fact lead
reasonable readers who know the plaintiff to the conclusion that they
do refer to her? [23] This
test found favour with our courts.
However, Gautchi AJ in Aymac CC v Widgerow
6
said that separating the questions of law and fact is artificial in
the context of a trial. He said:
“
The
distinction is only relevant in the case of an exception, or where
the functions of deciding matters of law and fact are divided,
as
between judge and jury. On exception there is by definition no
evidence. and the court will have before it the alleged defamatory
statement, together with whatever special circumstances are pleaded
in regard thereto. The court will assume the correctness of
the
special circumstances pleaded and answer the question, as a legal
one, whether the statement is capable of referring to the
plaintiff
If the court is to apply the two-stage enquiry in a trial it must be
astute to ignore the evidence when answering the
first question."
He said that it would be more logical,
in a trial, to formulate the question as a single one, as was done by
three of the other
Lords in the Knupffer case, e g as formulated by
Lord Atkin:
“
The
only relevant rule is that in order to be actionable, the defamatory
words must be understood to be published of and concerning
the
plaintiff."
In
my view the logic of this approach is unassailable.
[24]
The words of the first comment directly refer to the plaintiff and
they in fact lead reasonable readers to know that they referred
to
her. Two of the plaintiffs personal friends (as distinguished from
Facebook friends) testified that they knew immediately that
the
comments referred to the plaintiff. Ms M d K testified that she knew
about the litigation between the plaintiff and the second
defendant
and understood that the first comment was an attack on the plaintiff.
She saw the first comment on 16 April 2012 on the
second defendant’s
Facebook wall. She immediately copied it onto her Blackberry cell
phone device and forwarded it to the
plaintiff.
[25]
I find therefore that the first posting refers directly to the
plaintiff, even though there might be more than one L. In the
circle
of friends and acquaintances of the plaintiff and the defendants,
everyone knew which L was being addressed. They did not
need a
surname to identify the plaintiff.
[26]
The second comment does not refer to the plaintiff by name, and in
isolation, it cannot be said that it refers to her. However,
it forms
part of an exchange of messages posted on the defendants’ walls
within a period of a few hours. It is abundantly
clear that they are
all part of an attack on the plaintiff. Several persons reacted to
the postings. As in the case of the first
posting, they could not
have reacted had they not known to whom it refers because the posting
would have been meaningless to them.
Ms Angela Heyns, another close
friend of the plaintiff, testified that she saw the second comment on
the second defendant’s
Facebook wall and knew that it referred
to the plaintiff, firstly because she was aware of the ongoing
litigation between the plaintiff
and the second defendant, and
secondly because the names of the plaintiff’s children were
mentioned in the posting at 15:00
on 13 April 2012.
7
She did not immediately inform the plaintiff of the posting because
she thought there were suggestions of a sex scandal that might
be a
sensitive issue in which she should not get involved. She contacted
the plaintiff only after she had discussed it with her
husband.
[27]
Counsel for the defendants argued that, in establishing whether the
postings referred to the plaintiff, the court should interpret
each
posting individually without having regard to the other postings. He
referred to Geyser en n Ander v Pont
8
and quoted from the headnote where the following appears:
"...
in order to adjudge whether the articles were defamatory and to what
extent they referred to the plaintiffs each article
had to be dealt
with separately.”
That
part of the headnote is quoted out of context. What appears in the
judgment is the following:
“
Die
gewraakte Kromeke strek oor ‘n tydperk van n jaar; die deursnee
leser sou ledereen elke maand gedurende daardie tydperk
as ‘n
afsonderlike stuk gelees het, en me die heie reeks soos n boek op een
slag me Derhalwe, na my mening, om te oordeel
of en hoe hulle
lasterlik is en of en tot watter mate hulle na die eiseres verwys,
moet elke artikel afsonderlik behandel word
Maar
natuurlik beteken dit nie dat die vorige artikels me vir die uitleg
van die latere gebruik kan word nie; as iets uit die vorige
artikels
deur die deursnee leser tydens die lees van latere artikels waarskyn-
lik onthou sou word, kan dit vir die uitlegging
van laasgenoemde
inaggeneem word "
[28]
The court held that previous articles may be used for the
interpretation of the various articles. In any event, this was a
finding on the particular facts of that case. The facts in this case
are completely different. The postings followed each other
within a
period of a few hours. The reasonable Facebook member would have
understood that all the postings related to the issues
between the
plaintiff and the defendants.
[29]
The plaintiff’s two personal friends knew that it referred to
her, and other contacts on the defendants’ network
also knew. I
find therefore that whether one adopts the two-stage enquiry set out
by Viscount Simon LC in Kupffer on the one hand,
or the approach
suggested Lord Atkin in Kupffer and Gautchi AJ in Aymac CC v Widge-
row on the other hand, the second posting unambiguously
refers to the
plaintiff.
The
second posting is in the form of a question
[30]
I must dispose of a further submission made by counsel for the
defendants, viz. that the second posting is in the form a question
and that a question cannot constitute defamation. It is so that the
posting is grammatically in the form a question and it ends
with four
question marks. However, implicit in the question is a statement. The
statement is that the plaintiff allows her teenaged
stepson to bathe
her 6-year-old daughter every evening because it is convenient to
her. The question is not whether the plaintiff
allows it, but what
the “mammas en pappas" think about it
[31]
There is therefore no merit in this submission.
Are
the comments individually or individually and collectively,
defamatory'?
[32]
The first comment is to the effect that the plaintiff is meddlesome
and interfering. It is a personal message addressed to
the plaintiff.
If the first defendant had an issue with the plaintiff, she could
have addressed it with her personally However,
she chose to publish
it on Facebook where all her friends and friends of the plaintiff
would read it. Although the first message
does not constitute serious
defamation, publication thereof on her Facebook wall was gratuitous
and with the intention to place
the plaintiff in a bad light.
[33]
The second impugned posting is scandalous to the extreme It suggests
that the plaintiff encourages and tolerates sexual deviation,
even
paedophilia Some of the defendants' friends lapped it up with relish
and added their own snide comments, compounding the damage
to the
plaintiff’s reputation.
[34]
I therefore find that both statements are defamatory, individually
and collectively.
THE
SECOND DEFENDANT
[35]
The second defendant is not the author of the postings. However, he
knew about them and allowed his name to be coupled with
that of the
first defendant He is as liable as the first defendant.
DAMAGES
[36]
For the purposes of awarding damages, I shall consider the combined
effect of the comments on the reputation of the plaintiff.
[37]
Nugent JA said in Tsedu and Others v Lekota and Another
9
that monetary compensation for harm of this nature is not capable of
being determined by any empirical measure. Awards made in
other
cases might provide a measure of guidance but only in a generalised
form. He did not find it helpful to recite other awards
[38]
Mindful of the caution by Nugent JA, I nevertheless sought guidance
from previous awards.
[39]
Harms JA pointed out in Mogale and Others v Seima
10
that awards in defamation cases do not serve a punitive function and
are, generally, not generous. In Mthimunye ve RCP Media and
Anotheru
11
R35 000 was awarded to a Municipal Manager about whom a report was
published in City Press about alleged sexual harassment of a
secretary in his office. City Press had apologised, but Du Plessis J
found that the apology had been insufficient. This is the
most recent
comparable decision that I could find. The facts in Mthimunye can be
distinguished in mainly two respects: (a) the
plaintiff was a public
figure, and (b) the respondent had published an apology.
[40]
An apology in the same medium (Facebook) would have gone a long way
towards mitigating the plaintiff’s damages. In fact,
there is
much to be said for the proposition that orders for damages for
defamation are inappropriate. Nugent JA, in a minority
judgment in
Media 24 v Taxi Securitisation
12
referred to a 1995 report of the New South Wales Law Commission,
referred to by Willis J in Mineworkers Investment Co (Pty) Ltd
v
Modibaneu
13
which called damages as the sole remedy for defamation “remedially
crude”. Nugent JA said in para [72]: “As it
is. an order
that damages are payable implicitly declares that the plaintiff was
unlawfully defamed, thereby clearing his or her
name, and there can
be no reason why a plaintiff should be forced to have damages as a
precondition for having the declaration.”
An
apology to the plaintiff, or a retraction in writing, in the same
forum that the offending statements had been made, also clears
the
name of the plaintiff
[41]
The defendants have not apologised and continued to hold their view,
as expressed by the first defendant in an e-mail response
to the
plaintiffs attorney, that they had been entitled to publish about
anybody whatever they liked. The e-mail is as follows:
“
Trish.
..facebook is oop vir almal en almal se opimes...nerens is lets op
jou klient se wall gepost of enige een se identiteit geopenbaar
i ...
so weereens soos ek in post gese het as die skoen pas trek dit
aan..."
Instead
of an apology, the defendants raised specious technical defences
[41]
Crude as damages for defamation may be, our courts have consistently
awarded damages to the victims of defamation, albeit in
modest
amounts Since the defendants did not apologise or retract their
defamatory comments, I believe that an amount of R40 000
is
appropriate in the circumstances.
In
the result I make the following order:
1.
Judgment is granted in favour of the plaintiff against the defendants
jointly and severally, the one paying the other to be absolved,
in
the sum of R40 000.
2.
The defendants are ordered, jointly and severally, the one paying the
other to be absolved, to pay the plaintiff’s costs
on the
appropriate magistrates court scale, but including the costs of
counsel.
J.
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
Date
heard: 20 August 2013
Date
of judgment: 30 August 2013
Counsel
for the plaintiff: Adv. K. Fitzroy
Attorney
for the plaintiff: Macrobert Inc, ref. T Da Pre le Roux
Counsel
for the defendants: Adv. R. Schoeman
Attorney
for the defendants: Van der Hoff
1
Facebook
has its own parlance. I shall in due course explain these terms
2
(2012)
129 SALJ 375
3
2013
(2) SA 530
(GSJ)
4
Argus
Printing & Publishing Co Ltd v Weichardt
1940 CPD 453
Visse
v Wallachs' Printing & Publishing
1946 TPD 441
Amler
s Precedents of Pleadings,
7th Ed by Harms at 162
5
[1944]
1 All ER 495
(HL) at 497. This two-staged test has found favour in
our courts See
Aymac
CC v Widgerow
2009 (6) SA 433
at 445
6
2009
(6) SA 433
(WLD) at 446J
7
Paragraph
[15] above
8
1968
(4) SA 67
(W)
9
2009 (4) SA 372
(SCA) at [25]
10
2008
(5) SA 637
(SCA) at paras [9] to [12] and [18]
11
2012
(1) SA 199
(GNP)
12
2011
(5) SA 329.
paras [71] and [72]
13
2001
(6) SA512 para 26