A Facebook post on Christmas Day by a South African woman alleging that her husband beat her is going viral, with more than 6,000 shares at the time of publication. The post includes several photographs of bruises on the woman's body and more than 6000 comments. The husband is identified by other posts on the woman's public Facebook profile, where he is tagged.
If it is true, the post serves as a heart-wrenching reminder of the violence many South African women face.
Statistics for domestic abuse in South Africa are difficult to come by. The South African Police Service doesn't release statistics on abuse or assault by intimate partners, but they are required to document every instance of reported domestic violence, as well as have victim-friendly rooms. AfricaCheck reports that in March 2014, "only 1.4 percent of police stations inspected (two out of 145) were fully compliant with the Domestic Violence Act". As a result, turning to the media has sometimes become a last and desperate resort for victims.
And most recently, more allegers are turning to social media to expose violations. But the double-edged sword of this, however, is that if you fail to prove the allegations in a court of law, the accused can sue for defamation. The matter then becomes a civil case.
We spoke to legal expert Kgomotso Mokoena about what some of the implications would be for a people who name their abusers online.
1. What are the legal implications for an alleger if they expose an abuser on social media?
The implications in this regard are considerable. Her risk of her boyfriend instituting action against her is significant. Her remarks may be construed as defamatory. In addition, every person who retweets or shares her posts or comments is guilty of publication which could consequently give rise to a claim against them. She may, however, be able to use the defence of truth in the public interest, if the allegations are shown to be true. So she would then carry the burden of having to show that the allegations are true to avoid liability for defamation.
2. If she doesn't share any of the proof, will she still have legal recourse after posting all the details?
She definitely still has recourse both criminally and civilly, whether she shares the evidence or not. The quality of her evidence against him does not diminish because of its publication. She creates the possibility of him having a civil claim for defamation against her if she publishes these allegations.
3. If there is a case open with the police, how does this affect matters?
Criminal cases, save for those with special circumstances attached (for example where there are minors involved) are open to the public. So it is not necessarily an issue where concerns around privacy arise. It will only become problematic if the post intimidates or influences witnesses.
4. If a company receives such information about their employee — for example, if there's a guy who works at your company and he is accused of beating his girlfriend — how are they to proceed within the confines of the law?
The employer may want to dismiss the employee on the basis that he is negatively affecting the image or reputation of the company. This is a substantively fair reason for dismissal. However, it would be in the employer's interest to perhaps suspend the employee until the matter is finalised.
5. What if all of it is true? Does he have a leg to stand on in terms of defamation?
No, that will be her primary defence. If the allegations are true, it is a complete defence to a claim of defamation.