8 October 2014
by Linda Erasmus, CEO of Fine & Country International Realty sub-Saharan Africa
The internet has opened the world of communication and people can openly share their likes and dislikes, with some of the dislikes turning into complaints, which can be used and abused at the poster’s convenience.
While the Constitution of South Africa encourages the principle of fairness, protecting every member of our society, members themselves should make an effort to understand their rights and duties in making South Africa that wonderful place we all strive to live in.
Websites, like Hello Peter, which is designed solely to publish consumer complaints, should also warn and educate the public about the consequences of publicising defamatory statements about other parties. At present, it seems that society is largely ignorant in this regard.
I have analysed the complaints posted relating to real estate matters on the Hello Peter website, drawing the conclusion that the majority of the postings relates to complaints in connection with the rental divisions of real estate companies involving one or other dispute.
The example of landlords and tenants will be used to illustrate the potential danger to any person who is posting defamatory statements about any other person or entity. You may be posting the statement in the hope of getting a response from the other party. However, the poster should be careful as the posting could have serious legal consequences.
In the analysis we have done, it appears that whenever tenants are aggrieved because (in most cases) the landlord is withholding a deposit, they use websites as a small claims court, either to bad-mouth the landlord’s appointed agent or other individuals involved in the transaction. The other party is often not even aware of the posting.
The law offers every member of society the route of settling a dispute, utilizing the rules of the law that the government sets out for its citizens. Once a party has entered into a contract, the contract should be clear about the duties and obligations of the parties. If one party is in default, the contract should also give guidelines regarding what the remedy of the other party is when it comes to disputes and/or damages.
Often, one party in a rental agreement, (let us use the tenant as example) has not looked after the property and the landlord withholds money at the end of the agreement. Here the question arises whether it is fair for this tenant to bad-mouth any party involved in the transaction on a public website. Sometimes information about the tenant’s own fault is withheld.
Agreements are complicated and any party replying to some of the comments posted may form part of an emotional vendetta, rather than solving the legal problem, of which the party making the first defamatory post, is often part. Judges in a court will confirm that all disputes have many complications and that the “story” always has more than one side.
Defamation is recognised in South African law and publishing words in an email or on a website fulfils the element of publication. In a claim for defamation, one of the elements that the claimant must prove is that publication of the defamatory statement has taken place. The second element a complainant has to prove in a court of law is that the statement has infringed his or her right to a good name. The only remedy for the poster is to show that it is really in the interests of the broader society to post such information. A court in a defamatory claim will weigh up the interests of the individual against the interests of society. Derogatory remarks that are substantially true do not constitute defamation.
Taking into consideration the example of the landlord and the tenant, the fact that the agency or the landlord refuses to refund the tenant may be correct and true and therefore one’s initial thought is that the tenant has a right to post defamatory remarks referring to this incident.
However, in most of these cases, like in any case that goes to court, there is more than meets the eye. What the tenant omits to post (in most cases) is his or her own failure to abide by the contract.
Equally, responding to a statement by such a tenant can have consequences for the landlord or the agent. All parties in a court case need to rely on a defence. Responding to defamatory matter may give the first poster a defence of provocation compensatio (the two parties’ defamatory actions cancel each other’s out.)
Matters of law, such as contracts, should be settled by lawyers. If a party to a contract is aggrieved, there is the small claims court, the court and a legal adviser ready to assist him or her.
South Africans, like the rest of the world, are slowly cottoning on to the fact that cyberspace also has rules and regulations. The same rules of law that we use in our daily lives apply to the internet. So, the next time your frustration drives you to a site, such as Hello Peter, think twice.
The intention of this article is to assist readers and the public to avoid a heavy lawsuit against them because they were ignorant of what it means when publication of a defamatory message takes place.
[Linda Erasmus has been in the property business for almost 30 years and recently completed her LLB degree. (Legal information: DP van der Merwe, A Roos, S Nel Selected private and criminal law principles of the Internet.)]
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