Free Speech and Social Media: you’re not in your bedroom

As an active privilege, it (freedom of speech) ranks with the privilege of committing murder: we may exercise it if we are willing to take the consequences – Mark Twain

In the age of social media, it’s not so much committing murder as committing suicide. Penny Sparrow (an ideal Twitter handle?) is the latest ‘victim’ of her own carelessness.

Although there were some laws guaranteeing some freedoms prior to the advent of Apartheid, the Nationalist government introduced legislation to enable the Executive to stop the publication of newspapers, magazines and books.

Only government-controlled radio stations were allowed to operate. Television was prohibited for a number of years. The government closed down some newspapers and banned some journalists or prohibited them from working for news media.

Politicians, activists and protesters were prohibited from speaking at or even attending gatherings. Foreign journalists were denied visas for no apparent reason other than they may expose the regime’s dictatorial practices. Substantial periods of imprisonment were imposed for some of these breaches.

Journalists found ingenious ways of getting around the various prohibitions. The collapse of apartheid was in part due to the contribution made by the liberal press.

Our democracy has simultaneously created and coincided with untrammelled freedom of speech, and not always to the good. Section 16(1) of The Constitution provides that

“Everyone has the right to freedom of expression, which includes           —

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;…

This right, however, is not absolute. It does not extend to—

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

Freedom of speech does not obviate from exercising care in what one says or writes. On the behemoth that is social media what one writes can carry the social, professional or political kiss of death.

Prior to the proliferation of Facebook, Twitter, comment links etc. publication in writing of racist or defamatory remarks was confined to letters.

The former required hand-to-hand distribution, in a manner of speaking. Generally, therefore, there would be a limit to how many people would be exposed to the comment, unless the media published it.

Letters addressed to a newspaper were (and still are) subject to editing and you were (and still are) required to give your full name and address to allow verification of the origin of a letter, even if you wished to be referred to by a pseudonym or anonymously.

The advent of telefaxes didn’t make a great deal of difference as it only affected the speed of the communication, but not the composition of it.

This changed considerably with email. The ease and speed with which an email could be composed and sent led to a considerable increase in embarrassing and unwise communication. As emails replaced letters as the primary form of written communication, people generally became more cautious of what they wrote before sending, or saving them to be reread and reconsidered later.

The danger has become more acute with the popularity of the social media. At the end of the third quarter of 2015, Facebook had 1.55 billion monthly active users. There are 650 million used and unused Twitter accounts.

Facebook has, in many respects, replaced oral social communication. Something unwise that may have been said to a friend or a group of friends, now is written to a ‘friend’. Facebook users forget that they are not teenagers confiding in each other in the privacy of their bedrooms.

Social media has encouraged a no-holds-barred approach to being insulting, rude, defamatory or vulgar. Racism, hate speech and anti-Semitism have become currency on these media. So too old-fashioned defamation.

The High Courts in Gauteng have ruled on defamation on Facebook. In one case the judge held the user liable rather than Facebook itself, saying that this would have a more meaningful effect in discouraging wrongdoing.

The judge also noted that that the defence mustn’t just be that the words are true. They must also be “in the public interest” NOT “interesting to the public”. If malice in publishing the piece is proved, the defence will fail.

In another case Wife No. 2 posted a series of defamatory statuses referring to Wife No. 1. Wife No. 2 also tagged the husband. The posts only referred to Wife No. 1 by her first name but made reference to the conflict between the two wives.

The judge found that it wasn’t necessary to use Wife No. 1’s surname as the facts revealed exactly who she was.

The judge said that the publication of the Wife No. 2’s first post was gratuitous and intended “to place the plaintiff in a bad light”.

The second post, however, blatantly implied that Wife No. 1 allowed her teenage stepson to bathe her young daughters, creating an impression of sexual deviance and paedophelia that was “scandalous in the extreme”.

Although the husband wasn’t the author of the postings, he knew about them and allowed his name to be coupled with Wife No. 2. So, he was equally liable.

The difficulty of removing tags or mentions suggests that the consequences of using the social media can be more far reaching than past media were and much more difficult to retract.

An adequate apology may, repeat may, help you reduce your exposure to liability. Sparrow’s comments comparing black people to monkeys is unlikely to be susceptible to any form of apology.

The nature of the apology matters and the judgments suggest –

Apologising on the same medium;

Be sincere and clearly retract – be unequivocal;

Apologise sooner rather than later.

Compare Diane Kohler Barnard’s immediate and unequivocal apology, together with a preparedness to accept the Democratic Alliance’s punishment, with Sparrow whose apology just poured oil on troubled waters and included, amongst other extraordinary statements, “I wasn’t being nasty or rude or horrible, but it’s just that they [black people] make a mess. It is just how they are.” 

Twitter has the same sort of results but in a more public context. By virtue of its 140 character limitation, they are quick to write, to send and to respond to without thinking through the consequences. Ask Kohler Barnard and, most recently, Chris Hart, an economist with Standard Bank.

Hart tweeted: “More than 25 years after Apartheid ended, the victims are increasing along with a sense of entitlement and hatred towards minorities…” It is seldom about what you write as how you write it.

One of the problems with Twitter is that the brevity does not allow you to create context or explanation. However many tweets you follow with, you are on the defensive and invariably have to try to explain too much in order to convey it effectively.

An English court found retweeting to be an act of defamation.

Think, before you write, before you send.

Freedom of speech means setting words free. Imprisoned and freed words are consequential. All words have consequences. – John R Dallas Jr

Sara Gon is a Policy Fellow at the IRR, a think tank that promotes economic and political liberty. Follow the IRR on Twitter @IRR_SouthAfrica.