There have been some fairly disturbing events occuring in the past few weeks with regards to online freedom of speech and people being prosecuted for what they’ve said online. I’m no lawyer (unless a year at Wits makes me one) but I felt I needed to give my thoughts. Two examples come to mind:
The first being the Donn Edwards case where he was sued for making comments about the “Quality Vacation Club” and how they run their business. Now everything has been sorted out and the issue settled out of court in a very mature manner. This does set a scary precedent for South African bloggers being prosecuted for their words.
The next and frankly more worrisome event is the issue of an Eldorado Park resident being prosecuted for Crimen Injuria for writing rude comments about his friends wife on Facebook. Just to clarify what Crimen Injuria is: it’s a uniquely South African law that is (Wikipedia): defined to be the act of “unlawfully, intentionally and seriously impairing the dignity of another.” Although difficult to precisely define, the crime is used in the prosecution of certain instances of road rage, stalking, racially offensive language , emotional or psychological abuse and sexual offences against children. I think it’s a ridiculous South Africanism but my opinion isn’t really important in the law of the country.
What does scare me here is that everything is now fair game online. Things said online usually involve a lot less thought than if they were to be printed in a traditional newspaper. Something that might be taken as satire or a joke can easily be misconstrued and more importantly, those with the deepest pockets can create their own agenda.
Another issue is that there is no real policing here. How can the Police govern the Internet and frankly don’t they have better things to do? I’m confused as to why Crimen Injuria is even allowed to be used online.
I personally toned down an article I wrote about the new ANC website purely for this reason and it makes me wonder: where does the issue of free speech come in here and how can we make sure that it isn’t stifled? There’s a thin line between Crimen Injuria and Free Speech and someone needs to make sure the line is very clear.
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There are a number of differences between the Donn Edwards and Duane Brady cases. In Donn’s case I believe he legitimately exercised his right to freedom of expression and QVC should not have been allowed to go as far as they did with their litigation.
On the other hand the Duane Brady is a criminal matter which arose because the complainant elected to lay a charge with the police rather than sue (civil litigation is expensive whereas criminal prosecutions are handled by the State – that carries its own advantages and disadvantages). Brady appears not to have legitimately exercised his right to freedom of expression although I am sure we will see the parameters of the right dealt with as part of the case.
As I pointed out in my post on about the Brady case (http://webtechlaw.com/eldorado-park-man-prosecuted-criminal-defamation-facebook), there are consequences to being careless online. The Web’s appearance of a virtual free for all is misleading and when it comes to social networks like Facebook in particular, you are still dealing with real people in a very public forum whose reputations could be dashed overnight. There needs to be some protection for those people while at the same time protecting legitimate forms of expression.
screw crimen injuria! in fact- saul, your girlfriend is a ho :p
Not sure if you are aware of the crimen injuria case: State v. Johnstone; Plaintiff: Hon. Patricia de Lille. Plaintiff’s motives unknown.
Defendant’s documentation and background information can be found at:
http://crimeninuria.blogspot.com