Reporting, Naming and Shaming self named Professionals and Contractors

"Naming and Shaming": A Double-Edged Sword

Prepared by : Independent SAPAC Reporter
Article Classification: Legal Information 
Image courtesy: SAPAC Professionals and Contractors

 
Areas: Southern Africa, Northern Cape, Western Cape, Cape Winelands, Free State, Gauteng, North West Province, Limpopo, Mpumalanga, Natal 

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Naming and Shaming 

The powerful tool of "naming and shaming" has become prevalent on social media platforms, allowing individuals to expose illegal or unethical actions. While the constitutionally protected right to freedom of expression safeguards those who engage in this practice, it is not without limitations. Defamatory publications can lead to lawsuits against the originator and those who perpetuate the harmful content. In the age of rapid online reviews and comments, users must exercise caution when expressing opinions to avoid damaging the reputations of others.

Using SAPAC as a recourse

Utilizing  SAPAC to report social media pages, websites or self named professionals and contractors is the safest bet.

The onus of naming and shaming on social media has been proven that the wrong party definitely takes the legal route to eradicate their wrongfulness .   

Defamation 

Defamation is defined as the wrongful and intentional publication of material that harms another person's reputation. On social media, sharing, liking, or retweeting defamatory content can be considered perpetuation. In the case of Isparta v Richter and Another (22452/12) [2013] ZAGPPHC 243, it was determined that being "tagged" in a defamatory post could result in shared liability if the individual was aware of the content and failed to dissociate themselves from it.

South African courts balance the affected person's right to human dignity and privacy with the originator's right to freedom of expression. When considering defamation cases involving commercial entities, specific factors are evaluated.

In Flocutt (Pty) Ltd v Eisenberg (3592/2016) [2016] ZAFSHC 200, the court addressed the defamation of a business through online publications. Murray AJ stated that both individuals and legal entities have a right to their good name and reputation. The originator in this case used social media to warn the public about the business's alleged practices of non-delivery or delivery of faulty goods.

The court assessed whether the posts were defamatory and, if so, whether they were justified by truth and public interest or constituted fair comment. Key considerations included:

• Public interest in being informed
• Manner of publication
• Nature and tone of the posts
• Reliability of the information source
• Verification efforts
• Opportunity for the defamed party to comment

The court applied the reasonable person test to determine if the business's reputation was harmed. The publications were found to be defamatory but failed to meet the grounds of justification for truthfulness or public interest.

To establish fair comment, the court outlined four requirements:

• The defamation must be a comment based on an independent fact.
• The comment must be fair and based on community convictions.
• The underlying facts must be true and known to the party referred to.
• These facts must be in the public interest.

The publications in Flocutt were deemed to be conjectures and did not meet the requirements for fair comment. The originator was ordered to remove the posts and pay costs.

In Bool Smuts and Another v Herman Botha (887/20) [2022] ZASCA 3, the Supreme Court of Appeal considered the infringement of a commercial business owner's right to privacy. A wildlife conservationist posted photos of dead animals on a commercial farm, along with the owner's details. The farm owner sued for privacy infringement.

The court held that while the public interest lay in the topic, the identity and business details were also relevant. The farm owner had no legitimate expectation of privacy as this information was already public.

Although the cases had different outcomes, both demonstrate a careful scrutiny of defamation cases to ensure fair treatment. While commercial entities can be exposed for unlawful or unethical actions, they are not shielded from online criticism. The public's freedom of choice relies on transparency and accountability.

Contact SAPAC for the best assistance. With a legal subject matter report your legal council will have more clout. 

South African Professionals and Contractors (SAPAC) Time