Cyberbullying v Freedom of Speech

//Cyberbullying v Freedom of Speech

Many people around the world reacted strongly against “cyberbullying” or cyber-bullying after the suicide of Megan Meier in 2006. She committed suicide after alleged online harassment by a fictitious “teen boy” who turned out to be the mother of a fellow school girl of Megan.  Lots has been written on the topic and lots of concerns have been expressed world wide, especially because in most countries, cyberbullying is not expressly regulated by legislation. The victim can often only rely on principles of defamation.

Cyberbullying occurs when someone is bullied, harassed, humiliated, threatened, embarrassed, intimidated, or targeted in some way through the use of information technology such as e-mail, instant messaging, chat rooms, pagers, cell phones or any other online services. This is the one side of the coin. The other side is of course that principles of Freedom of Speech should apply to online comment. The right to Freedom of Speech is recognized in many countries throughout the world. In South Africa too, the right is recognized in our Constitution and welcomed by most, after years of strict censorship and restrictions. But how does one find the right balance and draw the line between cyberbullying and Freedom of Speech?

Let’s look at some USA rulings on “cyberbullying” and free speech rights (as they call it):

  • During 2007, two high school girls in the USA created a profile on the <> website of their school principle, that showed him to be a sex addict and pedophile. It came to the school’s knowledge and the girls were suspended for 10 days on the ground that they breached the school’s disciplinary code. The code prohibited the making of false accusations about school staff. The one girl instituted a civil rights suit on grounds of her free speech rights.  On the facts of the matter, the court ruled that the suspension did not violate her free speech rights.
  • In another Pennsylvania ruling where an unflattering profile of a principle, again with cruel and vulgar language was created by a school boy, the school also suspended him for 10 days on the grounds that he breached the school’s rules. Again, court action was instituted inter alia on grounds that the disciplinary action violated his free speech rights. This time the Court ruled in the boy’s favour on the facts of the matter and found that the School indeed violated his right to freedom of expression.

As in the majority of countries, South Africa does not have any legislation that governs “cyberbullying” as such and the principles of defamation must be applied where someone was allegedly “bullied” through use of the Internet. The case and another v Touchline Media was the first South African case where an interdict was sought on the grounds of online defamation. In the end, the court did not get to the issue of online defamation because the Applicant could not prove the requirements for an interdict in itself.

In Manual v Crawford-Browne though, the court indeed found on the facts of the matter that certain allegations posted to a website were defamatory and ordered the Respondent to remove the allegations from the website. The Applicant was also allowed to institute an action for damages against the Respondent.

More and more people use social media or websites and online platforms to express their views on various issues. In the past, this was not always possible. The online environment also makes it easier for people to express their views anonymously. People tend to think that because it is (1) online and (2) easier to stay anonymous in the online world, they can say what they want. Be careful. Of course, you can say what you want. But remember that it may come at a price. And the price might even be damages payable in a foreign currency. When commenting online, bear in mind that defamation in the online world indeed exists and consider what you have to say carefully each time.

By |2019-08-02T10:24:53+02:00April 28th, 2009|Categories: Cyber Crime|Tags: , , , , , |