oa Litnet Akademies : 'n Joernaal vir die Geesteswetenskappe, Natuurwetenskappe, Regte en Godsdienswetenskappe - Vonnisbespreking : Facebook en persoonlikheidsbeskerming : regte
Facebook and the protection of personality
The decisions in Sooknunan, Heroldt and Isparta are important since they focus attention on the social media, especially Facebook, and spell out the legal implications of the use thereof. This is particularly true of the law of delict with regard to iniuria where it is clear that ordinary delictual principles can be applied fruitfully to protect victims against actionable infringements of the personality on Facebook. It is certainly not necessary for the courts or legislature to develop or create new principles in order to protect the victims of the Facebook system sufficiently - all that is necessary is to adapt established principles to the activities of the social media. In said cases recognised personality interests such as a person's good name or reputation (defamation), dignity (insult) and privacy (disclosure of private facts) were involved. The following principles are noteworthy: Firstly, the posting of private information about others on a user's Facebook wall or page which is accessible to all users of Facebook and to this extent in the public domain constitutes a prima facie wrongful violation of privacy. It is furthermore clear that should such posting of the information also be defamatory of or insulting to the victim, it will similarly be prima facie wrongful. The boni mores or legal convictions of the community are applied as a yardstick for wrongfulness. The onus is then on the perpetrator to rebut the presumption of wrongfulness by proving a ground of justification for the conduct complained of. Especially fair comment and (truth and) public interest are significant in this regard. Should the posting not be justified, the interdict as remedy to remove the postings from the Facebook wall and thus to prevent (continuing) wrongful conduct is of paramount importance. It stands to reason that the victim may also institute the actio iniuriarum and the Aquilian action, where available, respectively to claim satisfaction and damages for the iniuria, as happened with regard to the former in Isparta.
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