Freedom of expression has limits, Supreme Court rules in social media defamation case

Neither the Constitution nor freedom of expression protects a person who posts defamatory material concerning another on social media, the Supreme Court of Appeal ruled in turning down an appeal by a farmer after his Facebook post sparked death threats against an attorney.

A dispute arose between Pretoria attorney Pieter Strydom and farmer Francois Harman after the latter accused Strydom in a Facebook post of targeting white farmers.

Strydom, upset by the contents of the post, obtained an urgent interdict against Harman to stop harassing him.

The high court found that Harman and his friends and followers on his Facebook account posted and published offensive and life-threatening defamatory statements concerning Strydom.

Some of the postings were found by the high court to amount to a smear campaign.

The high court ordered Harman to remove the published material from his Facebook account, which referred to Strydom.

Harman was further ordered to submit, under oath, a list of the particulars of the persons who made the responding postings.

While Harman had meanwhile removed his posts, he turned to the SCA to appeal against the fact that he had to disclose the particulars of his followers who published threats against Strydom.

Strydom is an attorney and insolvency practitioner who also represents the Land and Agricultural Development Bank of South Africa and its financial agent, Unigro Financial Services.

The Land Bank and Unigro advance loans to farmers, subject to agreed terms and conditions, which include mortgaging their farms as collateral. The loan agreements provide for annual instalment payments of the amount loaned, due to seasonal harvest of the crops.

Whenever a farmer falls in default of payment, the Land Bank instructs its attorneys, in this case, Strydom’s law firm, to institute legal proceedings to recover the debt.

Included among the farmers was Harman and his company, who fell into arrears with payments.

Harman took to his Facebook account, stating that Strydom and some officials at the Land Bank were the cause of his problems. Strydom obtained an interdict against Harman, prohibiting him from committing verbal abuse through electronic communication as well as refraining from harassing him. The order was obtained in Harman’s absence.

The following day, a messenger tried to serve him with the protection order, but Harman denied them entry into his house and instead photographed them. After they left, he again took to his Facebook account and posted the pictures together with a post regarding how the lives of white farmers are made difficult in the country.

On the same day, his Facebook post was followed by a slew of other vitriolic postings from different persons - some made death threats towards Strydom. This resulted in the court ordering him to take down his post and to disclose the identities of those who had levelled threats and made defamatory statements towards Strydom.

Harman refused to submit the list of his Facebook friends involved and cited various excuses, including that ‘the Protection of Personal Information Act (POPIA) prevented him from divulging this information. He also stated freedom of expression as an excuse.

To post a message on Facebook that someone “needs a bullet between the eyes” is an impermissible exercise of freedom of expression. The right to freedom of expression, like all rights, has limits. The one obvious limit is when its exercise encroaches into the domain of another person’s right, the SCA said.

It found that Strydom is entitled to the list of persons responsible for these unlawful acts in order to vindicate his rights, if he deems fit to do so.

Cape Times