You carefully craft every Facebook status and take great care to post only appropriate photos to your profile, right? But even the most secure social media user can run into a problem: a friend posting something inappropriate to your wall. Who’s at fault in this situation – the author or the “owner”?

Consider Isparta v. Richter

A High Court of South Africa ruling recently held a Facebook user guilty of defamation for failing to remove a defamatory post from his wall, even though it was posted by someone else.

  • The court found him liable as the author for knowingly allowing the post to stay, and portraying his connection to the post as it was on his page. In this case, Isparta v. Richter, the plaintiff is the ex-wife who was the victim of a post made by the ex-husband’s new partner, speaking negatively about the plaintiff.
  • Because the posts along with comments had the ex-husband’s name tagged, they appeared on his page, as if he were advertising, advocating and supporting these opinions.
  • The ex-husband and his new partner were joint defendants and both were found equally liable for defamation as the posts clearly referenced the plaintiff. They were ordered to pay the plaintiff for damages in the amount of 40,000 South African Rand – approximately $2,632.

What about in the U.S.?

In the United States, our First Amendment rights allow us to speak our minds and share our opinions in public. But what about on social media? The question of limitations rises when there is the possibility of threat or violence or where an opinion statement may be unconstitutional for other reasons. There are some areas that your First Amendment privilege of free speech does not protect: defamation, fighting words and invasion of privacy.

Does Social Media Promote or Restrict your First Amendment Rights?

Facebook has numerous privacy controls and settings that each user can set for themselves, such as confirming posts you are tagged in before they appear on your general timeline. Facebook’s Terms of Service prohibit a user from bullying, intimidating or harassing other users. Users also are not allowed to post content that is considered hate-speech, threatening, pornographic, inciting violence or containing nudity or graphic or gratuitous violence. Additionally, Facebook itself has control over postings and state that they have the right to remove anything they believe is in violation of their Terms of Service.

What are the Legal Implications?

What exactly is “defamation?” In the United States under common law, defamation consists of: (a) a false or defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting to at least negligence on part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Following the First Amendment, it would seem as though individuals in the U.S. would be able to post on social media sharing thoughts and opinions as they please about friends, acquaintances or others, while also following the medium’s terms of service. As in the Isparta v. Richter case, it would seem challenging to make a case on one of the applicable limitations considering the facts of family matters between past relationship members. It is also important to note that in the U.S., truth is a complete defense in a defamation case, therefore, regardless of how extensive the harm to your reputation the statement imposed, you do not have a winning case if it is in fact true.

How Would this Affect the U.S.?

If a ruling similar to the one handed down by the South African High Court were to be made by the U.S. Supreme Court, it would seem somewhat unconstitutional, if there were no defamation charge. The First Amendment clearly states that no laws on restrictions of freedom of speech and freedom of the press should be made. This type of ruling, especially specific to the Isparta v. Richter case, is an obvious ban on an individual’s personal opinion and feelings of another. Such a restriction on sharing said opinion would, on its face seem unconstitutional. While certain restrictions do apply to First Amendment rights, most negative, vulgar, offensive opinions are allowed to be shared within this privilege.

However, the U.S. Supreme Court has held that the Constitution does not protect against libelous and defamatory publications. When making an argument in court regarding accusatory or offending social media posts, one would have to compare the facts to a situation where the First Amendment would not extend. This would seem difficult on the large scale, applicable to all users of all social media sites. The already backlogged U.S. courts could suddenly become overflowing with cases brought by disgruntled ex-partners, employees or other situations where someone chooses to express their emotions about a specific person on social media, in an allegedly defamatory manner. Following this application, it would not seem beneficial to the U.S. court system to make a similar ruling regarding liability on use of social media.