Blogging and South Africa Law
There has been a lot of talk on the blog about the legal aspects of blogging. What can you say and what can’t you say? Can you be sued for things that have been said?
I am not an expert by any means on ‘blogging’ law and the implications. I can only tell you my interpretation of how I currently see things.
South African law does not currently have any legislation in place dealing specifically with blogging. However this does not mean that someone could not pursue legal action as they could make use of other laws, such as those dealing with libel (or character defamation).
Here are sections of an article written by Dr Gerrie Ebersohn LLD (UFS):
Section 16 of the Constitution enshrines the right to freedom of expression, which includes the right to criticise. However, the Constitution does not grant Internet users a blanket right to say what they want, as the right to freedom of expression is limited by the provisions of s 36. Of course, comments or remarks constituting hate speech are not protected by the Constitution.
The constitutional right to freedom of speech stands on equal footing to the constitutional right to human dignity. Although defamatory statements are also part of one’s exercise of freedom of speech, s 36 permits the reasonable proscription of activities and expressions that pose a real and substantial threat to the values underlying the Constitution, of which the right to human dignity is one. Therefore, statements, comments or remarks that constitute defamation impairing the plaintiff’s fama, do not enjoy constitutional protection. Consequently, the court must always balance the right to freedom of speech with the right to dignity, which means that the plaintiff must prove that the alleged defamatory statement is not worthy of protection as an expression of free speech.
In order to determine whether statements are defamatory, one must ask whether the ordinary, reasonable, balanced and right-thinking person, who is a person of average intellect and education and with normal feelings and emotions, reading the words of which the plaintiff complains, will consider that these words lower the plaintiff’s esteem in the eyes of the public, and therefore in the eyes of South African Internet users. The alleged defamatory statements must be read in their context and as a whole.
In a democratic society such as South Africa, the Internet plays a role of undeniable importance. Web sites not only provide Internet users with information but also provide them with a platform where information and ideas can be exchanged and disseminated. While it is imperative that there is a free flow of information, that members of the public can voice their opinions, beliefs and commentary on Internet web sites, and that they can participate in online debates, it is also of paramount importance that the reputation of individuals and businesses should not be infringed unreasonably. Accordingly, a South African Internet user’s right to freedom of speech does not permit him to defame third parties.
For the more articles on South Africa law dealing with defamation, click here to view the Derebus SA Attorneys’ Journal website.
There is one more important point that needs some consideration. Blog South Africa is registered in a country out of South Africa and all the servers are located out of South Africa. Blog South Africa would be under no legal obligation to honour any court order, subpoena or legal request, unless it was issued and ordered by the country where our offices are located. The owners of Blog South Africa reserve the right to co-operate with South African authorities when and if they see fit.
Please remember that I am NOT a lawyer or attorney and have no legal training. For any legal questions, please contact a suitably qualified person.
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