1

The Law of Online Defamation in

South Africa: Are we keeping up or

falling hopelessly behind?

By Robin Richardson1

The Internet has been hailed as one of mankinds greatest inventions- a seamless,

borderless and nation-less web of interconnected organisations and individuals who

contribute to its ever expanding nature on a daily basis. The versatile nature and

ease of use afforded by the Internet allows communication between users to be

instantaneous, in turn fuelling creativity, promoting expression and allowing for global

exchanges of knowledge and ideas. From bloggers to journalists, from major

filmmakers to mash up artists, from stay-at-home retailers to CEOs of Fortune 500

companies, everyone can find their niche in the realm of the World Wide Web. While

the ability of Internet users to hide their true identities behind a plethora of avatars,

usernames and nicknames makes the Internet, in the eyes of some, a symbol of

hope for un-curtailed freedom of expression and speech, for many academics, jurists

and attorneys around the world, the Internet often presents seemingly

insurmountable issues with regards to jurisdiction, choice of law, and the

enforcement of court orders. These issues are no more prevalent than in the field of

defamation or libel.

The factual scenario will be commonplace to most, if not all, readers- C, a

disgruntled employee of Company B, who was denied a promotion or raise, enters a

finance discussion forum and under the pseudonym of JackTrader proceeds to post

various statements about the harsh working environment and allegedly corrupt and

unscrupulous activities of Company Bs senior management. In another scenario, a

livid ex-husband, X, creates a Facebook profile from his home computer in London

1 LLM Candidate 2012/2013, University of Cape Town. Much gratitude is expressed to Dr Caroline Ncube for

her guidance and comments on this paper. The views, and any mistakes, present in this paper are solely that of the author.

2

and proceeds to create a group in which he warns readers of his ex-wife, Ys,

constant infidelity during the course of their marriage. This Facebook group is shared

with Ys Cape Town friends and colleagues, and although the allegation is untrue,

results in immense public embarrassment for Y. Since both scenarios mentioned

above could be considered to be prima facie defamatory, the question then arises

who should be liable? If the above two publications had taken place within the local

print media, such as a newspaper, the logical answer would be that the C and X,

along with the publishers of the statements may be held jointly and severally liable.2

A local or national court in this situation would most likely have no issues founding

jurisdiction, determining which law applies and enforcing their order. The problem

with online defamation, for instance in the Facebook scenario, is that while the

effects of the defamatory statements were felt in South Africa, Facebook is hosted in

the United States, and Xs internet service provider is based in the United Kingdom.

As the above two scenarios briefly show online defamation is extremely complex and

fraught with issues. While South Africa could still be considered in to be in its

adolescent phase with regards to universal accessibility to the Internet- with an

estimated 8.2 million users3- there has been a dramatic increase in Internet usage in

recent years.4 The run off of this is that courts can expect to deal with an increasing

number of cases related to the Internet and, in particular, online defamation.

The paper will begin with a background of the law of defamation in South Africa and

the inherent tensions that lie within this complex area of law in terms of the modern

online environment. This section will draw out particular issues that will then be

discussed in the latter sections- namely liability, jurisdiction, choice of law and

enforceability. Throughout the sections a comparative analysis will be conducted

between South African law and other jurisdictions- including, but not limited to, the

United States, United Kingdom, Canada and Australia. The paper will conclude that,

2 Sanette Nel Defamation and the Internet and other computer networks (1997) (2) The Comparative

and International Law Journal of Southern Africa at 155. 3Arthur Goldstuck Mobile pushes Internet to the Masses available at

http://www.worldwideworx.com/mobile-pushes-internet-to-the-masses (Last accessed 4 October, 2012). 4According to research done by World Wide Works (Supra note 3) there was a 25% growth in Internet

users for the period of 2010 to 2011. The researchers further predicted that the number of Internet users would reach the 10 million mark by the end of 2012.

3

while there is a lack of precedent set by the South African courts in the area of online

defamation, the legislation and case law currently available, if interpreted in the

correct manner, will allow the courts to adequately adjudicate the Internet cases- and

South African legislation may, in some instances, be ahead of many jurisdictions in

terms of applicable legislation.

i. The Law of Defamation in South Africa

The common law delictual act of defamation was defined in National Media v

Bogoshi5 as the unlawful, intentional publication of defamatory matter referring to

the plaintiff which causes his reputation to be impaired6. Prior to the Bogoshi case

there was strict liability for defamatory statements by the media or distributor-

however the court in Bogoshi overruled this and introduced a new defence for the

media in the form of a lack of negligence while still retaining the requirement of

animus injuriandi for individuals.7 Today defamation is perpetrated by the media if

there is the unlawful (unreasonable) negligent publication of defamatory matter

referring to the plaintiff which causes his reputation to be impaired8. The court in

Bogoshi, in essence, was attempting to balance the two competing rights in the

South African law of defamation- namely the public interest in freedom of expression

and the right of the individual to dignity and reputation.9 These two competing rights

form the core of any defamation dispute, not only in South Africa, but the world

over.10

South Africas law of defamation does not make the same distinctions as English and

Canadian law between written defamation (referred to as libel) and spoken

defamation (slander).11 While slander is possible over the Internet, in the form of

5 National Media Ltd. and Others v Bogoshi 1998 (4) SA 1196 (SCA).

6 Yvonne Burns Communications Law (2

nd Edition) 2009 Lexisnexus, Durban at 202.; Sanette Nel

Freedom of Expression and the Internet in L Reinhart Buys & Francis Cronje (Eds) Cyberlaw @SA (2

nd Edition) Van Schaik Publishers (Pretoria) (2004) at 198.

7 Ibid.

8 Ibid.

9 In South Africa these rights are enshrined in the final Constitution in section 10 (the right to dignity-

of which reputation forms a part) and section 14 (the right to freedom of expression). 10

Elizabeth F. Judge Trends and themes in cyber-libel and other online torts in Justice Todd Archibald & Michael G. Cochrane (eds) The Annual Review of Civil Litigation (2005) (Toronto: Carswell) at 6. 11

Supra note 2 (Sanette Nel) at 156.

4

webcasts or online reporting, the majority of online defamation cases will involve

written words and thus be classified as libel. Online defamation or libel, however,

raises many complications that are usually easily solved in the traditional law of

defamation. In particular the issue of where and when publication takes place and

who is liable for the defamation and how this may be limited.12

In traditional South African defamation law involving written or print media,

publication occurs when and where the defamatory material is read by a third party.13

Furthermore every person who then repeats, confirms or draws attention to the

defamatory material would be considered to be a publisher and may be held liable.14

Once publication is proven, a plaintiff must prove that the statement is defamatory.15

The test in South Africa for whether a statement is defamatory is an objective one

and involves 1) establishing the natural or ordinary meaning of the statement and 2)

determining whether that meaning is defamatory.16 This traditional notion of

publication, and objective test for the meaning of the words, is well suited for

localised publication where it is simple to call witnesses to provide evidence.

However the Internet has turned the idea of localised publication completely on its

head.

The Internet allows for the rapid spread of information across the world to numerous

countries and legal jurisdictions. With the regards to the objective test for the

statement it can be argued that what may be considered to be defamatory, for

example, in South Africa, may be completely acceptable in China. Furthermore the

inquiry into who is liable is far more complicated than in the traditional law of

defamation. In print media it is often easy to identify those liable- for instance in a

newspaper publication, one simply needs to look at the name of the newspaper and

the name of the writer- who, more often than not, will be writing using their correct

name. The published statement would furthermore only have been made possible

through a process of review and agreement between the newspaper/publisher and

the writer of the article and thus would be easier to prove negligence and liability on

12

Ibid. 13

Supra note 6 (Nel) at 199. 14

Ibid. 15

Supra note 6 (Burns) at 203. 16

Ibid.

5

the part of the publisher. The reality of the Internet, however, is that postings and

comments are often not reviewed by Internet service providers (ISPs)17 or website

owners, or are often too numerous to make constant review feasible.18

The Internet has forced courts to re-evaluate the law of defamation and ask new

questions in order solve online disputes. The court in Tsichlas v Touch Line Media19,

held that three questions arise in terms of online defamation:

- Firstly the court will have to determine whether it has the jurisdiction to

hear the matter;

- Secondly if the answer is in the affirmative the next question is which legal

system applies to the dispute;

- Finally the court will have to determine who is liable under the substantive

law principles of the appropriate system.20

These three questions provide a useful roadmap from which to analyse the

adequacies or inadequacies of South African regulation with regards to online

defamation.

ii. Jurisdiction with regard to online defamation in South Africa

According to section 19(1)(a) of the Supreme Court Act21, a High Court shall have

jurisdiction:

over all persons residing or being in and in relation to all causes arising and

all offences triable within its area of jurisdiction and all other matters of which

it may according to law take cognizance...

In addition to a superior court having jurisdiction over all persons and all causes of

actions arising within its jurisdiction, superior courts also have jurisdiction over any

17

ISPs are entities that provide users access to the Internet as well as perform other roles such as: provision of email services, domain name registration, hosting of websites as well as transmission, routing and the receipt of messages. N.D. O Brien The liability of Internet Service Providers for unlawful contents posted by third parties (2010) LLM Thesis available at http://www.nmmu.ac.za/documents/theses/N.D.%20O%E2%80%99BRIEN.pdf (Accessed 4 October, 2012) at 3. 18

Supra note 10 (Judge) at 16. 19

Tsichlas and another v Touch Line Media (Pty) Ltd 2004 (2) SA 112 (W). 20

Supra note 6 (Burns) at 479. 21

No 59 of 1959.

6

company or closed corporation whose principle place of business or registered office

falls within its jurisdiction.22

In the law of defamation the cause of action would be the publication of the

defamatory material.23 The place of publication would normally be the place where

the publication is completed - this would be where the defamatory statement is

comprehended or understood by a third party, not being the person to whom the

statement refers.24

The only case in South Africa thus far to deal with the issue of where and when

online publication takes place is the case of Tsichlas v Touch Line Media.25 One of

the main disputed issues before the Witwatersrand Local Division26 was that the

court did not have jurisdiction to hear an online defamation matter involving Tsichlas.

Touch Line Medias (the respondents in the matter) main argument was twofold-

firstly Touch Line Media averred that their registered offices did not fall within the

jurisdiction of the court, and secondly, that the ISP was located in Cape Town.27

Tsichlas, the applicants in the matter, however averred that, firstly, Touch Lines

principal place of business was within the courts jurisdiction and, secondly, that the

cause of action- in this case publication- had taken place within the courts

jurisdiction.28 The court, after reviewing numerous materials, held that publication

had taken place within its jurisdiction when the applicants attorney had accessed

the defamatory material on the respondents website in Sandton.29

The approach adopted by the court in Tsichlas is essentially classified as

publication on download approach for asserting the jurisdiction.30 The problem

however with this approach, as pointed out by Collier, is that it may lead to multiple

publications in multiple jurisdictions allowing a plaintiff to engage in forum

22

MS Blackman Companies LAWSA vol 4, Part 1 First Reissue (1995) Butterworths, Durban. at para 12. 23

Debbie Collier Freedom of expression in cyberspace: Real limits in a virtual domain (2005) 21 Stellenbosch L.Rev. 16 at 23. 24

Ibid. 25

Supra note 19 (Tsichlas). 26

Now the South Gauteng High Court . 27

Supra note 19 (Tsichlas) at 120. 28

Ibid. 29

Ibid. 30

Supra note 23 (Collier) at 29.

7

shopping.31 Furthermore it may expose Internet publishers to multi-jurisdictional

defamation liability suits that they may not have reasonably anticipated.32Whilst the

approach to publication and jurisdiction in Tsichlas is in line with other jurisdictions,

for instance English law,33 it can be argued that allowing a cause of action

publication- to be the determining factor, rather than a factor to be considered, in

asserting jurisdiction is far too general for it to be considered fair to potential

defendants.

A more robust approach to establishing jurisdiction in online defamation suits is most

certainly required in South Africa. South African courts in the future would do well to

approach the issue of online publication and jurisdiction in manner similar to

Canadian courts. In the case of Moran v Pyle National (Canada) Ltd34 the court

rejected an arbitrary and inflexible set of rules for asserting jurisdiction and rather

adopted an approach that required a real and substantial connection between the

jurisdiction and the wrongdoing.35 While Moran did not deal with a case of online

defamation, the approach established was later accepted to apply to the Internet by

the Canadian Supreme in the case of SOCAN v Canadian Association of Internet

Providers.36

The approach to establishing jurisdiction in the United States also derogates from

the English, Australian and South Africa approaches that the cause of action, and

31

Ibid. 32

Ibid. 33

In English law the words are published in the place where they are received- Supra note 2(Nel) at 162. 34

[1975] 1 S.C.R. 393. 35

Supra note 10 (Judge) at 22. The factors a court considers in determining jurisdiction were later laid in the case of Muscutt v. Courcelles (2002), 60 O.R. (3d) 20, [2002] O.J. No. 2128, (2002) 213 D.L.R. (4th) 577 (Ont. C.A.) These being, but not limited to: - Connection between the forum and the plaintiffs claim

- Connection between the forum and the defendant - Any unfairness to the defendant in assuming jurisdiction - Unfairness to the plaintiff in not assuming jurisdiction - Involvement of other parties to the suit - Courts willingness to recognize and enforce foreign judgment

rendered on the same jurisdictional basis - Whether the case is interprovincial or international in nature; and - Comity and standards of jurisdiction, recognition and enforcement

prevailing elsewhere (international standards and standards applied in defendants jurisdiction)

36 [2004] 2 S.C.R. 427, 2004 SCC 45, [2004] S.C.J. No. 44, (2004) 240 D.L.R. (4th) 193, 32

C.P.R. (4th).

8

therefore jurisdiction, arises with each publication. Many states within the United

States have instead adopted a single publication rule.37 This rule holds that the

publication of defamatory content only constitutes one cause of action and, in

addition, a prescription period of one year runs from the moment of the original

publication of the defamatory material.38 Judge further notes that the dominant trend

with regards to publication on websites is that publication occurs at the time of the

uploading of the defamatory content rather than when the material is accessed or

read by a third party- as is the case in South African and English law.39 Wood notes

that the single publication rule does not prevent new and separate defamatory

liability from arising due to the exception that if a publisher republishes the statement

further liability may arise.40 The advantage of the single publication rule, as Wood

points, out is that it compiles all claims from applicable jurisdictions into one claim-

this of course eliminates the potential for multi-jurisdictional claims.41 However, in the

South African context, this rule would still not answer the definitive question of which

court should have sole jurisdiction to hear the matter as the republication rule may

allow for further jurisdictional issues to arise and thus would still allow for the

potential for forum shopping.

The above approaches adopted in Canada and the US in many ways limit the

potential for complicated and multi-jurisdictional defamation suits. It could argued

that South African courts in the future should move away from the current cause of

action and publication approach as laid down in Tsichlas and move towards a hybrid

model of the single publication and real and substantial connection approach. A

hybrid model of the two above approaches would provide greater legal certainty for

publishers of online material. A suggested hybrid model based on the above

approaches could be constructed in the following manner.

37

Supra note 10 (Judge) at 38. 38

Ibid. 39

Ibid; This rule has further been codified in the Uniform Single Publication Act of 1952. Section 1 states:

No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one edition of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions

40 Lori A. Wood Cyber-defamation and the single publication rule 81 B.U. L. Rev. 895 2001 at 900.

41 Supra note 40 (Wood) at 898.

9

Firstly, publication should be considered to have taken place when the material is

first uploaded onto the Internet and prescription should run from the time of

uploading, rather than when the publication is made known to a third party. The

reason being that the nature of the Internet allows uploaded material to stay online

for an infinite amount of time- if, for instance, the defamed person only stumbles

upon the defamatory matter after 3 years, with the current ambiguous approach as to

when publication takes place it may mean that the plaintiff can sue despite the fact

that under South African statute law the cause of action or debt would normally

have prescribed. 42 A slight alteration to the single publications rule would make also

make it more effective- in particular this alteration would concern the republication of

the statement and further liability. By introducing the defence of lack of negligence,

as established in Bogoshi, to the single publication rule, South African courts could

limit further publication liability to defendants who could or should have reasonably

foreseen that such republication would be defamatory.43

The above approach would give a definitive answer to when the defamatory material

was published. The next question the court would have to answer is where such

publication has taken place and which court rightly has the jurisdiction to hear the

matter. In this respect the court would be wise to adopt Canadas real and

substantial connection approach. By applying the real and substantial connection

approach South African courts would be able to able to consider all the evidence of

the case and evaluate which court truly has a real connection with the matter thus

limiting the potential for forum shopping and creating greater legal certainty for online

publishers.

The issue of jurisdiction has further complications- namely the issues of

enforceability and the founding of jurisdiction in the case of foreign defendants. The

general rule, as noted by Collier, is that a court will only assert personal jurisdiction

over a foreign defendant if it can offer the plaintiff an effective judgment- this is

42

Presciption Act No 68 of 1969- s11 and s12. 43

The introduction of the negligence, as opposed to intention, to online defamation has been advocated by numerous academics. Furthermore innocent republication is far more likely today with the introduction of Facebook and facilities such as ability to like or share a comment without actively writing it oneself.

10

known as the doctrine of effectiveness in South African law.44 In cases dealing with a

foreign defendant the plaintiff will usually utilise the doctrine of arrest or attachment

to confirm and found jurisdiction.45 A court will attach the foreign defendants

property if it falls within the courts jurisdiction or alternatively may issue a warrant of

arrest for the defendant. The doctrine of attachment and arrest are highly

problematic in the context of online defamation. The nature of the Internet allows for

persons to own or host a website locally, and have a local market share, without

having ever been present or having assets in the country. For instance an online

marketing company may own a co.za website and generate income from local

retailers, but be hosted by a US ISP and have all their monetary assets and offices

in New Jersey.46 In this situation unless the court abandons the antiquated doctrine

of effectiveness in online defamation, it is unlikely that they would be able to found

jurisdiction over the foreign defendants. Reform then is needed in the form of a long

arm statute, as used by US courts, together with the requirement that the foreign

defendant has minimum contacts or a real and substantial connection with the

adjudicating South African court.47 A minimum contact in this case could be the

registration or ownership of the co.za website or a reasonably sized South African

subscriber and user base. Adopting this approach would bring South African

defamation law in line with foreign jurisdictions, such as the US and Australia, who

do not require enforceability or effectiveness in order to found jurisdiction.

Furthermore by abandoning the doctrine of effectiveness in online defamation cases

the court will be able address the more important questions of where the most harm

has occurred and which legal system should apply.

iii. The difficulty of choice of law in online defamation

44

Supra note 23 (Collier) at 23; This doctrine is known as the doctrine of effectiveness. 45

Ibid. 46

A similar situation to this occurred in the seminal Australian case of Dow Jones & Co. Inc. v Gutnick [2002] HCA 56 where Dow Jones, the owner of Barrons Online, published an article which was alleged to be defamatory towards Gutnick. Dow Jones however was entirely based in New Jersey. While attachment and arrest were not issues, the fact remains that a similar situation is very likely to arise in the near future within South African courts. For a detailed analysis of the Australian approach to online defamation see David Grant Defamation and the Internet: principles for a unified Australian (and world) online defamation law (2002) 3(1) Journalism Studies 115. 47

The minimum contacts approach has been developed in the US- Supra note 23 (Collier) at 23

11

A South African court having found that they have jurisdiction to hear a matter

concerning online defamation is then faced with another challenge- which legal

system, foreign or domestic, should apply to the dispute. The court in Tsichlas was

fortunate, in the sense that both the applicant and respondent were South African

residents at the time of the dispute, and the cause of action arose within South

Africa- this meant that the court could avoid the complicated issue of which legal

system should apply to the dispute.

There are essentially two approaches that a court in South Africa could follow in

regard to deciding on the applicable legal system in an online defamation case.48

Firstly there is the lex loci delictus and, secondly, there is the proper law approach.

The lex loci delictus approach to choice of law appears to have growing support in

South African and internationally.49 By applying the lex loci delictus the court will

generally have to address the issue of where the publication has taken place and

where the greatest harm has been done to the plaintiffs reputation and then apply

the relevant legal system.50 Again this presents courts with an almost impossible

task due to the fact that publication can take place within almost every country in the

world- the result is that a plaintiff may forum shop for a legal system that is most

sympathetic to their action.51 Perhaps then, as Collier suggests, a proper law

approach is more suitable for cases of online defamation. A proper law approach

requires the court to apply the law of the place "that has the most significant

relationship with the occurrence and with the parties."52 The approach is more

flexible than the lex loci delictus and could in many ways be likened to the approach

taken by the Canadian courts in determining a real and substantial connection. The

proper law approach has however been rejected by English, Scottish and

Australian law commissions due the fact that it may in some cases be unpredictable.

The same concern however can be expressed with regard to the lex loci delictus

approach.53

48

While there is a third approach in the form of the double actionability approach this has been rejected by most jurisdiction and academics. 49

Collier points out that this approach is supported by the old authorities such as Van Kessel and is further used by a number of EU states- Supra note 23 (Collier) at 26. 50

See for instance in Australian law the case of Dow Jones v Gutnick (Supra note 46). 51

Supra note 23 (Collier) at 26. 52

Ibid. 53

Ibid.

12

While the court in Tsichlas did not have to deal with a choice of law, some clarity on

the law of defamation and choice of law was given in the case of Burchell v Anglin.54

The facts of the case, briefly, were that Burchell ran a safari and hunting outfitter

company in Bedford, Eastern Cape. Burchell and Anglin had previously had an

amenable working relationship which then turned sour later. Burchell alleged that

Anglin and his associate, Strickland, had made defamatory publications to Cabelas,

who at the time was Burchells booking agent based in Nebraska, United States.

Burchell alleged that these publications caused damage to his reputation as an

outfitter and as a result Cabelas stopped booking with Burchell causing him to lose a

substantial amount of money. Although the publication in this case did not concern

an online publication, the issue before the court was which legal system should apply

to the dispute, that of South Africa or Nebraska. After considering the facts of the

case, and other international law, the court decided that the lex loci in this case was

Nebraska- this was due to the fact harm caused by the publication to Cabelas had

taken place within this State.55 Having decided that the lex loci was Nebraska,

Crouse AJ then examined whether there were any substantial relationships between

the plaintiff, the defendant and the state of Nebraska and whether these were more

significant than their relationships to South Africa. In dealing with the issue of the

parties relationships Course AJ considered the following factors:

- The lex causa;

- The plaintiffs domicile and the place of business;

- Where the plaintiffs greatest financial loss had occurred;

- Where the greatest harm in relation to the plaintiffs reputation had

occurred;

- The plaintiffs business interests in the state of Nebraska;

- The plaintiff and defendants relationship and connection with the state of

Nebraska.56

The court then proceeded to balance all the above factors and came to the

conclusion that the plaintiff and defendants relationship, in terms of the publication

and harm, was more closely connected to Nebraska than South Africa and therefore

54

2010 (3) SA 48 (ECG). 55

Supra note 54 (Burchell v Anglin) at para 123. 56

Supra note 54 (Burchell) at para 125.

13

the law of Nebraska should apply- with the proviso that it was not in conflict with the

provisions of the South African Constitution.57

The court in essence applied a proper law approach to the case and considered

the lex loci as one of the many factors to consider when determining which legal

system had the most significant relationship with the action. While the decision is

that of a High Court, and may thus only be persuasive until such time as it is

accepted by the Supreme Court or the Constitutional Court, it does serve as an

indicator that the courts may be willing to adopt the more flexible and suitable

proper law approach in the future when dealing with cases involving a foreign party

or foreign defamatory publication.

iv. Who is liable in South Africa for defamatory publications made online?

Having answered the question of jurisdiction and which substantive law should apply

to the matter, a court would then be faced with the issue of who then is liable for the

defamatory publication. While the Bogoshi approach to defamation in South African

would dictate that the court could hold the writer and publisher jointly and severally

liable58, determining the identity of the writer and who a publisher is in an online

environment is not straightforward- the reason being that there are numerous parties

involved in making an online publication possible.

To understand the complexity of the problem one must understand the parties

involved in the publication of any online material. To begin with one has the Internet

Service Provider who would usually host numerous websites on their server and at

the same time provides Internet access to potentially hundreds, thousands or even

millions of users. Next, there is the website owner, who creates and manages the

website to which Internet users may subscribe to and add to in the form of user

generated content through various mechanisms. Lastly, there are the users of a

website, who usually are required to register with a website prior to being given

57

Supra note 54 (Burchell) at para 129. 58

Supra note 5 (Bogoshi).

14

permission to access certain aspects of the website and add user generated

content.59

The introduction of the Electronic Communications and Transactions Act60 (hereafter

referred to as the ECTA) in 2002 simplified the task for future South African courts

when dealing with ISP liability- unlike US courts who, prior to the codification of ISP

limited liability in S230 of the Communications Decency Act of 199661, had to grapple

with the complicated issue of whether or not an ISP should be held liable for

defamatory publications published or present on its servers. The US courts previous

approach to ISP liability in the cases of Cubby, Inc v Compuserve, Inc.62 and Stratton

Oakmont, Inc. v Prodigy Services Co.63 had been to apply the traditional common

law of defamation to ISP and would hold them liable if they were found to be

publishers64 -in this regard the determining factor was held to be the amount of

editorial control an ISP possessed in regard to the content posted on its servers. In

the case of Stratton Oakmont the court held Prodigy Services liable for defamation

due to the fact that they had editorial control over the content on their website. The

evidence concluded that they possessed the technology to filter and screen material

posted on their servers, could have removed the content from the website and also

had posted detailed guidelines as to what was allowed to be posted on the website.65

However since the promulgation of the Communications Decency Act, a US Court

has not found an ISP liability on the grounds of defamation and ISPs are generally

considered to be immune from liability for defamatory publications.66

English law on the other hand continues to hold the potential for ISP liability under

certain circumstances. The Defamation Act67 codifies the English common law of

59

This is a very simplistic analysis of the parties involved in the process of online publication, as an in-depth explaination of each party is beyond the scope of this paper. For an in-depth discussion and explanation of the parties involved in online publication the reader is directed to N.D Obriens (Supra note 17) comprehensive thesis on ISP liability in South Africa. 60

No.25 of 2002. 61

47 U.S.C. 23.0 62

1991 776 F. Supp 135. 63

1995 WL 323710 (N.Y. Sup. Ct. 1995). 64

Supra note 17 (O Brien) at 32. 65

Ibid. 66

Scott Sterling International Law of Mystery: Holding Internet Service Providers Liable for Defamation and the Needs for a Comprehensive International Solution (2001) 21 Loy. L.A. Ent. L. Rev. 327 at 328. 67

The Defamation Act of 1996 (c31).

15

defamation and, in particular, the defence of innocent dissemination.68 Under the

Act an ISP will be able to rely on the defence of innocent dissemination, and thus not

be liable, provided they are not primarily responsible for a defamatory statement,

have taken all reasonable care and do not know or have reason to suspect that their

own acts caused or contributed to the publication of a defamatory statement.69 The

first case in English law to deal with ISP liability was Godfrey v Demon Internet Ltd.

In brief, the court found that although the ISP, Demon Internet, was not the publisher

of the statement, they could not rely on the defence of innocence dissemination as

they had had not acted reasonably and removed the publication upon being given

notice.70 The Defamation Act and Demon Internet have been criticised by many

academics as placing too great a burden on ISPs due to the fact that it is often

difficult for ISPs to monitor the content posted on their networks or reply to every

take down notice due.

The ECTA provides limited liability for ISP in the form of safe harbour provisions in

Chapter 11.71 The Chapter in essence follows the US Communications Decency Act

and Digital Millennium Copyright Act by practically giving ISPs immunity from

prosecution for publications made or stored on their servers. The Chapter provides

that an ISP may be held liable if they have some form of editorial control over the

data message and are more than a mere conduit- much like the approach adopted

in the English Defamation Act.72 Furthermore, the ISP must not have actual

knowledge of the data message infringing a persons rights, or have knowledge of

facts or circumstances that make an infringement apparent.73 Section 77 of the

Chapter provides for a takedown procedure that empowers persons whose rights

may have been infringed to submit a detailed complaint to the ISP and request that

the infringing material be taken down. In terms of section 75 and 76 an ISP who fails

to take down the infringing material after receiving such a takedown notice may then

be held liable. The ECTA most certainly provides a great deal of clarity for courts

dealing with the complicated issue of whether or not an ISP should be held liable.

Furthermore the Act takes adequate notice of the fact that it is often impossible for

68

Supra note 17 (O Brien) at 41. 69

Supra note 2 (Nel) at 161-162. 70

Supra note 17 (O Brien) at 42. 71

Sections 70-77. 72

Section 73 73

Section 75(1) (a & b); Section 76 (1)(a &b).

16

ISPs to monitor all content that is published or on their servers and thus imposes no

general obligation on ISPs to do so.74 The Act appears to have struck a balance

between allowing ISPs to provide their services without fear of litigation, while at the

same time protecting the rights of persons whose rights may be infringed through the

use of such services.

It is perhaps tragic then that the drafters of the Act missed the opportunity to provide

such clarity with regards to the liability of website owners for content posted to their

sites. The Act however does an extremely broad definition of what constitutes a

service provider and it could be argued that website owners may fall within this

definition. The argument was raised briefly in Tischlas but the court appeared to

reject it at that stage. Website owners, despite not being included specifically in the

ECT Act, can limit their liability through the terms and conditions of use on their

website, they would in all likelihood be the first port of call for any persons whose

rights have been infringed through the publication of defamatory material.

Furthermore there is currently no legislation that requires Internet users to register

on websites using their true identity- the result being that often the website owner is

the only point of contact for a person wishing to sue for defamation and once sued

may not be able to claim back his loss from the poster.75 Similar provisions are thus

needed which provide for take down procedures for website owners. This should be

coupled with a provision that provides that there is no general obligation for website

owners to monitor their website and there should be allowance for remedies such as

retraction or apology if they are not the actual posters, publishers or editors of the

publication in lieu of monetary relief.76

It could be argued that the only person who should truly be responsible for the

defamatory statement is the actual poster or publisher/writer. While it is possible for

74

Section 78 (1) states: When providing the services contemplated in this Chapter there is no general

obligation on a service provider to- (a) monitor the data which it transmits or stores; or (b) actively seek facts or circumstances indicating an unlawful activity.

75 Korea for instance implemented a national name requirement for online postings in the hopes that it

would stem the increase of online defamation. For a detailed account of the law and its criticisms see John Leitner Identifying the Problem: Korea's Initial Experience with Mandatory Real Name Verification on Internet Portals (2009) 9 J. Korean L. 83 76

Barry J. Waldman A unified approach to cyber-libel: Defamation on the Internet, a suggested approach (1999)6 Rich. J.L. & Tech. 9 at 22.

17

website owners and ISPs to limit the potential for defamatory publications through

the use of sophisticated monitoring tools, it is often not possible to monitor all

postings and publications especially on a website that has a large user base. The

problem however of holding an individual poster liable is that often postings are

made anonymously or under pseudonyms. The only way then to obtain the true

identity of the poster would be compel the website owner or ISP to disclose the

details of the poster, provided that they have registered with their true identity and

details.77 However the compelling of ISPs and website owners to release such

details raises a number of Constitutional tensions between the right to privacy, the

right to dignity and the right to freedom of expression.

The issue of compelling ISPs to release the identities of posters has been a topic of

great debate in the US which, unlike South Africa, protects the right of anonymous

speech in the First Amendment.78 This First Amendment protection has further been

extended to include not only traditional print media but also online publications.79 US

Courts appear to be of the opinion that to compel ISPs to release the identities of

anonymous posters would serve only to have a chilling effect on freedom of speech

and thus the First Amendment.80 The defendants right to freedom of speech must

be balanced against the plaintiffs right to reputation and this is precisely what the

court in the case of Dendrite.81 The court laid down several factors that must be

fulfilled prior to an order being granted. Firstly, the plaintiff must have undertaken

efforts to notify the poster that they are the subject of a subpoena and application for

disclosure, and allow them a reasonable opportunity to file an opposition to the

application. Secondly, the plaintiff must set out the exact statements or materials that

form the basis of the cause of action. Thirdly, the plaintiff must produce a prima facie

cause of action and have sufficient evidence to support each element of the cause.

Having taken all these factors into account the court must then balance the plaintiffs

rights to dignity/reputation versus the anonymous defendants right to freedom of

77

Jennifer OBrien Putting a Face to a (Screen) Name: The First Amendment Implications of Compelling ISPs to Reveal the Identities of Anonymous Internet Speakers in Online Defamation Cases (2002) 70 Fordham L. Rev. 2745. 78

Supra note 77 (OBrien) at 2758.; See for instance Talley v. California 362 U.S. 60 (1960). 79

Ibid. Doe v 2TheMart.com 140 F. Supp. 2d 1088 (W.D. Wash. 2001) at 1097. 80

Ibid. 81

Dendrite International, Inc. v. Doe, No. 3,1 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).

18

anonymous speech under the First Amendment.82 The case has been hailed as

providing clarity to the complicated issue of compelled disclosure and appears to

have struck the right balance between the various rights involved.83

South African courts have yet to deal with a case such Dendrite. If such a case

arose, a South African court would be well placed to decide the matter through the

use of s36 of the Constitution and the recent Protection of Personal Information Bill

(POPI).84 The provisions of Section 3685 would provide a useful guideline for courts

to follow in order to strike a balance between the right to privacy86, the right to

expression87 and the right to dignity, of which reputation forms a part.88 The

introduction of the POPI Bill seeks to give effect to the right to privacy in the

Constitution and takes cognisance of the processing89 of personal information on

the Internet by ISPs. While the Bill recognises the importance of protecting personal

information, it also recognises that in certain circumstances it is necessary for such

information to be disseminated in order to protect the legitimate interest of the ISP90

82

Supra note 77 (OBrien) at 2767-2768. 83

Ibid. 84

Bill 9B-2009. 85

36. Limitation of rights.-(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-

(a) the nature of the right; (b) (b) the importance of the purpose of the limitation; (c) (c) the nature and extent of the limitation; (d) (d) the relation between the limitation and its purpose; and (e) (e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights 86

Section 14. 87

Section 16. 88

Section 10. 89

Section 1 of POPI defines processing means any operation or activity or any set of operations, whether or not by automatic means, concerning personal information, including (a) the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use; (b) dissemination by means of transmission, distribution or making available in any other form; or (c) merging, linking, as well as restriction, degradation, erasure or destruction of information 90

An ISP could be considered a responsible body per the definition in Section 1 of the Bill. A legitimate interest of the ISP would be the prevention of the distribution of hate speech in terms of 29(1) of the Film and Media Publications Act No 65 of 1996. If an ISP is found to be distributing hate speech and they may be held criminally liable and it would thus be in their legitimate interests to release the identity of the poster and avoid liability.

19

or a third party.91 The Bill however, much like the US approach to disclosure in

Dendrite, gives data subjects the right to be notified that their personal information

may be disclosed 92 and they have the right to object to such.93 While it is yet to be

seen whether the Bill will pass Constitutional muster, or how it will be applied in the

online environment, when the Bill is combined with a proper s36 limitations inquiry,

South African law most certainly provides ISPs and website owners with adequate

provisions to legally disclose the identities of anonymous posters, while at the same

time balancing the posters right to privacy and the complainants right to dignity

v. Conclusion.

While South Africa is still far behind most of jurisdictions in terms of the Internet

technological race, it appears to have formed the foundations for a strong law of

online defamation. That being said there still are certain aspects of the law, such as

jurisdiction and the publication, that require a more robust approach that will allow a

greater degree of predictability and certainty for online publishers. The effect of the

recent introduction of the POPI Bill remains to be seen, but from a preliminary

reading and interpretation of the Bill, it appears to adequately address and regulate

when it would be legally permissible for ISPs and website owners to disclose the

identities of anonymous posters. In many ways then even though South African

courts have not had the opportunities to adjudicate numerous matters involving

online defamation, if the above suggested foreign and local approaches to

jurisdiction and choice of law are adopted, combined with a correct interpretation of

s36 of the Constitution and the provisions of the POPI Bill, our courts will be well on

their way to establishing what so many jurisdictions are desperately seeking- a

unified and predictable approach to online defamation.

91

Clause10(1)(f). 92

Clause 17 of the POPI Act provides that the responsible party must not only notify the Regulator that personal information will be disseminated but must also notify the data subject. This adds a level of objectivity by requiring that an independent third party is involved, for example the Regulator, prior to the information being disclosed. 93

Clause 10(2).

20

Bibliography

Primary Sources

South Africa Legislation

Constitution of the Republic of South Africa, 1996.

Electronic Transactions and Communications Act No.25 of 2002.

Prescription Act No 68 of 1969.

United Kingdom Legislation

Defamation Act of 1996.

United States Legislation

Uniform Single Publication Act of 1952.

Communications Decency Act of 1996 47 U.S.C.

South African Case Law

Burchell v Anglin 2010 (3) SA 48 (ECG).

National Media Ltd. and Others v Bogoshi 1998 (4) SA 1196 (SCA).

Tsichlas and another v Touch Line Media (Pty) Ltd 2004 (2) SA 112 (W).

Australian Case Law

Dow Jones & Co. Inc. v Gutnick [2002] HCA 56.

Canadian Case Law

Moran v Pyle National (Canada) Ltd [1975] 1 S.C.R. 393.

Muscutt v. Courcelles (2002), 60 O.R. (3d) 20, [2002] O.J. No. 2128, (2002) 213

D.L.R. (4th) 577 (Ont. C.A).

SOCAN v Canadian Association of Internet Providers [2004] 2 S.C.R. 427, 2004

SCC 45, [2004] S.C.J. No. 44, (2004) 240 D.L.R. (4th) 193, 32 C.P.R. (4th).

United States Case Law

21

Cubby v Compuserve 1991 776 F. Supp 135.

Dendrite International, Inc. v. Doe, No. 3,1 775 A.2d 756 (N.J. Super. Ct. App. Div.

2001).

Doe v 2TheMart.com 140 F. Supp. 2d 1088 (W.D. Wash. 2001).

Stratton Oakmont v Prodigy Services 1995 WL 323710 (N.Y. Sup. Ct. 1995).

Talley v California 362 U.S. 60 (1960).

Secondary Sources

Books

Burns, Yvonne Communications Law 2nd Ed (2009) LexisNexis, Durban.

Buys, L Reinhart Cronje, & Francis (Eds) Cyberlaw @SA (2nd Edition) (2004) Van

Schaik Publisher, Pretoria.

Archibald, Justice Todd & Cochrane, Michael G (eds) The Annual Review of Civil

Litigation (2005) Thomson Carswell, Toronto.

Journal Articles

Collier, Debbie Freedom of expression in cyberspace: Real limits in a virtual domain

(2005) 21 Stellenbosch L.Rev. 16.

Goldstuck , Arthur Mobile pushes Internet to the Masses available at

http://www.worldwideworx.com/mobile-pushes-internet-to-the-masses (Last

accessed 4 October, 2012).

Grant, David Defamation and the Internet: principles for a unified Australian (and

world) online defamation law (2002) 3(1) Journalism Studies 115.

Leitner, John Identifying the Problem: Korea's Initial Experience with Mandatory

Real Name Verification on Internet Portals (2009) 9 J. Korean L. 83.

Nel, Sanette Defamation and the Internet and other computer networks (1997) (2)

The Comparative and International Law Journal of Southern Africa at 155.

OBrien, Jennifer Putting a Face to a (Screen) Name: The First Amendment

Implications of Compelling ISPs to Reveal the Identities of Anonymous

Internet Speakers in Online Defamation Cases (2002) 70 Fordham L. Rev.

2745.

22

O Brien, N.D. The liability of Internet Service Providers for unlawful contents posted

by third parties (2010) (Masters Thesis, Nelson Mandela Metropolitan

University).

Sterling, Scott International Law of Mystery: Holding Internet Service Providers

Liable for Defamation and the Needs for a Comprehensive International

Solution (2001) 21 Loyola Los Angeles Ent. L. Rev. 327.

Waldman, Barry J. A unified approach to cyber-libel: Defamation on the Internet, a

suggested approach (1999) 6 Richmond. J.L. & TECH. 9.

Wood, Lori A. Cyber-defamation and the single publication rule (2001) 81 Boston

University. L. Rev. 895.