If you follow international legal news, you may have noticed that on Friday 29 July 2022 judgment was handed down in the high-profile defamation case between Rebekah Vardy and Coleen Rooney. The full judgment is available here.
The case was informally referred to as the “Wagatha Christie trial” – a play on the famous British detective author, Agatha Christie, and the fact that both women are married to famous footballers (Jamie Vardy and Wayne Rooney) and in the UK press footballers’ wives are referred to somewhat condescendingly as “WAGS” (wives and girlfriends).
The primary issue related to Rooney accusing Vardy on social media of leaking private stories to the press (Rooney carried out a so-called “sting operation”, and limited access to her private Instagram account, and created fictitious stories, and when one of them appeared in a popular UK newspaper, she determined that it was Vardy who was leaking the stories to the press). Rooney then went on Instagram and “outed” or “named-and-shamed” Vardy. What followed was a high-profile defamation trial where Rooney was vindicated on the basis that her publication was substantially true (this is a statutory defence in terms of the UK’s Defamation Act of 2013 – this defence does not exist in South Africa). Interestingly, Rooney’s second defence (which failed) was based on public interest; here, the court found that she could not rely on this without first putting the allegation to Vardy to give her an opportunity to respond. A similar defence exists in South Africa – truth in the public interest, but the allegation must be both true and in the public interest.
What happens if you name and shame someone in South Africa on social media? First off: freedom of speech, although important, is not absolute, and a person’s freedom of speech is weighed up against someone else’s dignity and right to privacy.
Usually, in a naming and shaming case, the primary remedy used will be defamation, like the Wagatha Christie trial. One may also face potential criminal remedies (crimen injuria), and possibly other civil remedies such as an interdict could be at play as well. However, depending on the language used, further civil remedies in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (regulating hate speech) could also be relevant, such as in the case involving The Chinese Association (TCA) where the TCA took action against 12 people following comments on the Facebook pages of the investigative television show Carte Blanche after a story about the Karoo Donkey Sanctuary.
Turning to defamation, unlike in the UK and the US, in South Africa there is no distinction between libel (written) and slander (verbal) – both fall under the concept of defamation. In simple terms, one must show, objectively, that the post lowered the reputation and good name of the person concerned.
Therefore, it is on the face of it unlawful to name-and-shame someone online – and especially so if one uses language that is based on identity, such as race, ethnicity, or religion.
In relation to naming-and-shaming that does not involve race, religion or a person’s identity, there are some defences (justifications) open to defend that claim – primarily, that the post was true and in the public interest.
In the UK, as mentioned above, one can rely on a “truth” defence (as Rooney did), but that cannot be done in South Africa, and usually one will have to rely on a “public interest” defence but one must satisfy a court that the post was in the public interest – this does not mean that the public find the post interesting, but rather, that the post must be in the public’s interest.
Finally, some basic guidance:
- Do not post rants on social media when angry and emotional. Most important, avoid posting anything controversial when intoxicated.
- Where giving reviews or commenting critically about others, stick to the facts – be objective and neutral.
- Once you are comfortable posting a critique, rant or negative comment on social media, before you post it, think about this – would I be happy to say this to a stadium full of people? If the answer is still yes, then it may be appropriate to post it – that said, it may still land you in trouble, so often the best advice is to stay off social media when in a dispute with someone – resolve it using the traditional channels and means, or consult with an attorney.
Law Blog 