Twitter your way to a world of trouble
That’s an awful lot of commentary, or drivel, depending on your taste.
The great thing about Twitter is it allows anybody to build a congregation and feed short, pointed messages to their followers. Who, for example, would not be fascinated to read what Helen Zille ate for lunch, or what Julius Malema thinks about Jacob Zuma?
For those with time on their hands, Twitter is a wonderfully engaging avocation.
Until recently, people were able to say just about anything on Twitter and get away with it. That is changing fast. “Murderer” cried several South African Twitterati when Oscar Pistorius was charged earlier this year with the killing of his girlfriend, Reeva Steenkamp. Pistorius maintains he thought she was an intruder and shot her in error.
“Murderer” is something one might say in private to a friend at a braai as a personal opinion, but to tweet this to the world when the case has yet to be heard is clearly skirting with defamation. Kenny Oldwage, the lawyer acting for Pistorius, has already threatened newspapers that published court photographs of his client in alleged contravention of a ruling by Magistrate Desmond Nair. Should Pistorius successfully defend his case in court, he could conceivably launch a flotilla of defamation suits against those who pre-judged his guilt – sufficient in volume, one would imagine, to see him settle comfortably into early retirement.
Several recent cases, in South Africa and abroad, point to the hazards of incautious tweeting. The bottom line: tweeters are subject to the same restrictions as newspaper journalists.
Perhaps the most interesting case of all is that of Lord McAlpine, who was wrongly accused of being a paedophile linked to a BBC Newsnight investigation last year. The Twittersphere went berserk with speculation that Lord McAlpine was the unnamed, high profile persona implicated in the BBC investigation. Lord McAlpine’s lawyers went to work with astonishing energy and threatened to sue upwards of 10,000 Tweeters who had disseminated the false accusations. It was, said McAlpine, truly terrifying to become a figure of such public hatred as a result of these unfounded allegations.
Former BBC director George Entwistle was forced to resign over the scandal, and six figure settlement sums were paid by both the BBC and ITV networks for their part in spreading the story. McAlpine’s lawyers later focused their ire on those with more than 500 Twitter followers. Guardian journalist George Monbiot reached a settlement wherein he agreed to charity work worth R350,000 over three years for his part in disseminating the false allegations to his 55,000 followers.
“Please make sure you check your facts and think before you tweet,” wrote Monbiot after reaching this settlement with McAlpine earlier this month.
It’s the kind of advice that other incautious tweeters, and re-tweeters, will take to heart. To do otherwise could cost you everything you have.
Webber Wentzel associate and social media expert Emma Sadleir, speaking on a recent Carte Blanche interview, pointed out that social media law regulates any conversation that takes place over the internet. That includes not just tweets, but comments posted on Facebook and other social media sites. A recent South African case sets an interesting, and far-reaching, precedent.
How would you react if the following comment was posted on your Facebook page?
“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 for 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?”
The owner of the Facebook page sued the author of this comment for defamation in the South Gauteng High Court. The court found that the words posted on Facebook were indeed defamatory, and interdicted the offender.
“The court stated that as a defence, it is not good enough that the words must be true, they must also be to the public benefit or in the public interest to be published and the court distinguished ‘what is interesting to the public’ from ‘what it is in the public interest to make known,’” according to Danel van der Merwe of attorneys Bisset Boehmke McBain in a recent article on the case. “The court found that it was neither in the public interest nor for public benefit for the comment to be published.”
The court rejected the defence of “fair comment” raised by the author of the comment. To qualify as fair comment, the comment must be based on facts expressly stated or clearly indicated and admitted or proved to be true.
When tweeting the truth can get you fired
But even tweeting the truth can land you in trouble, as The Citizen photographer Johann Hattingh found out when he tweeted that a front page photo in The Citizen’s (19 September 2012) edition of a Kabul bomb horror had been doctored to remove two dead bodies. Hattingh was hauled before a disciplinary committee and then fired for bringing the company into disrepute for his “defamatory” remarks, and for breaching the trust between employer and employee. The Citizen did not refute Hattingh’s tweet, but said those responsible at the paper had been reprimanded.
Hattingh later told iMediaEthics: "I made the tweets because I was furious that the credibility I tried to build up over 16 years as a journalist could just be ruined by a decision like that. I stick by what I said on Twitter. In this game you only have your name, and I am glad that my name will not be linked to a newspaper whose editor ran a cloned pic on the front page and then had the audacity to say that 'not one reader complained.'"
What about an inflammatory tweet intended as a joke? When Paul Chambers arrived at Robin Hood airport in South Yorkshire in the UK in January 2010, he found his flight cancelled due to snow. "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!"
It’s just not funny
This tweet, which Chambers argued was clearly intended as a joke, got him arrested and prosecuted under section 127(1) of the UK Communications Act 2003, which prohibits sending "by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character".
In May 2010 Chambers was convicted at Doncaster magistrates court and fined £1,000. Last year Chambers won his challenge against the conviction, which was seen as a victory for free speech.
In another case, Liam Stacey of the UK was jailed for 56 days for racist tweet he made after footballer Fabrice Muamba suffered on on-field heart attack. Stacey later apologised for the tweet.
What about companies that claim defamation on social media sites such as Facebook. One such case involved the firing of an Apple employee for posting negative comments about the company on the social media site. Johan Botes of Cliffe Dekker Hofmeyr says the case “unceremoniously shoved into the limelight the impact that after-hours conduct may have on an employment relationship.”
Apple bites back
Apple Retail (UK) introduced a strict social media policy that prohibits any remarks by employees on the company or its products on any of the social media platforms. This rule was also emphasised during the induction of new employees. Despite this, the employee posted derogatory remarks about the company on his Facebook page. He reasoned that, as the posting was marked “private” and it could only be seen by his friends, it should fall outside the reach of his employer. Unfortunately for him, one of his “friends” then showed the posting to an iStore manager. Apple Retail took a dim view of this and dismissed the employee for misconduct, says Botes, in a commentary on the case.
The Employment Tribunal (the UK statutory equivalent of our Commission for Conciliation, Mediation and Arbitration, or CCMA) upheld the dismissal. The Tribunal reasoned that the employee’s posting could still be copied and forwarded by those friends who had access to his Facebook wall. The employee could thus not control or prohibit the onward distribution of the disparaging remarks. The Tribunal also took into account the unique business of Apple and accepted that it is largely dependent on its reputation in the marketplace. This commercial standing could be damaged by remarks like those made by the employee.
The finding by the Tribunal echoes comparable awards made by the CCMA in South Africa, says Botes. “Our law similarly recognises the right of an employer to take action against an employee where the employee’s private actions impact on the employment relationship. By the same token that an employer could dismiss an employee for assaulting his manager after hours, the employer may discipline an employee that causes harm to the company by making unsavoury remarks about the company, its products, service or staff on social media networks. Employees enjoy no special protection against action taken against them where they rant about their managers merely because the comment was made on Facebook, Twitter or LinkedIn rather than during the weekly office meeting. The test used to establish whether the employer may take action is whether the conduct hampers the ongoing relationship with their employer.”
Freedom of speech
Twitter may be just seven years old, and Facebook slightly younger, but their users are having to face up to the real world legal challenges that publishers have faced for centuries. The volume of defamation and libel cases stemming from this new media is growing exponentially, exposing the fault lines between freedom of speech and defamation.
This may not be the publishing utopia many of us hoped for at the birth of the internet and social media. As David Bank, a journalist and social media consultant recently wrote in the Guardian: “My concern is that, as with so many other areas of law - libel, contempt, privacy - it is social media and online publication that is proving to be a friction point. It is generating more and more cases where the new publishers - the general public armed with a smartphone - are finding themselves on the wrong side of laws of which they have little or no knowledge.
“Ignorance is no excuse, of course, but we are going down a road where we may criminalise large sections of the community because they do not understand the many laws they can break when they publish their thoughts online, rather than just saying them in the pub.”
The message is clear, as Monbiot points out: check your facts and think before you tweet.