H v W (12/10142) [2013] ZAGPJHC 1; 2013 (2) SA 530 (GSJ); 2013 (5) BCLR 554 (GSJ); [2013] 2 All SA 218 (GSJ) (30 January 2013)

H v W (12/10142) [2013] ZAGPJHC 1; 2013 (2) SA 530 (GSJ); 2013 (5) BCLR 554 (GSJ); [2013] 2 All SA 218 (GSJ) (30 January 2013)

The court found that the respondent's Facebook posting was defamatory and unlawfully infringed the applicant's right to privacy and reputation. The respondent failed to justify the publication on grounds of truth, public interest, or fair comment, and acted with malice. The applicant's right to privacy and dignity outweighed the respondent's freedom of expression in this context. Given the nature of social media, an interdict was the only effective remedy, as damages would not provide similar protection. The court ordered the respondent to remove all postings referring to the applicant from Facebook and any other social media site and awarded costs to the applicant.

Citation
[2013] ZAGPJHC 1
Parties
Applicant: H,WS; Respondent: W,N
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 January 2013
Case Number
12/10142
Procedural Posture
Urgent Application / First Instance
Outcome
Application granted. Interdict issued. Costs awarded to applicant.
Judges
N. P. Willis
Legal Topics
Interdict, Defamation, Privacy Rights, Social Media Liability, Actio Iniuriarum
Civil Procedure Family and Children Interdict Defamation Privacy Rights Social Media Liability Actio Iniuriarum

Case Brief

Summary, issues, holding and outcome

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Parties

H,WS

Applicant

W,N

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the respondent's Facebook posting unlawfully infringed the applicant's right to privacy and reputation.
  2. 2 Whether the applicant is entitled to an interdict compelling the respondent to remove the offending social media posts.
  3. 3 Whether damages or another remedy would provide similar protection to the applicant.

Ratio Decidendi

The court found that the respondent's Facebook posting was defamatory and unlawfully infringed the applicant's right to privacy and reputation. The respondent failed to justify the publication on grounds of truth, public interest, or fair comment, and acted with malice. The applicant's right to privacy and dignity outweighed the respondent's freedom of expression in this context. Given the nature of social media, an interdict was the only effective remedy, as damages would not provide similar protection. The court ordered the respondent to remove all postings referring to the applicant from Facebook and any other social media site and awarded costs to the applicant.

Court Disposition

Application granted. Interdict issued. Costs awarded to applicant.

Orders

  • The respondent is to remove all postings which she has posted on Facebook or any other site in the social media which refer to the applicant.
  • The respondent is to pay the applicant’s costs in this application.