Freedom of Facebook

By Kutloano Kunutu

In early January of this year, a man from Eldorado Park, Gauteng, became the first known man in South Africa to be arrested and charged with crimen injuria. Crimen injuria is an offence committed when a person deliberately injures another’s reputation. He had been posting derogatory and defamatory messages on his wife’s friend’s Facebook wall after she reported him to the police.

Facebook is a social networking site, offering people the chance to communicate with other people in their chosen networks. It allows for self-expression and the famed, or rather misused, ideal of freedom of speech.

Many of us use Facebook on a daily basis to communicate with our friends and family. We put up photographs of our nights out and we write on each others walls, sometimes even daring to stalk the hot boy or girl we spotted at the Rat (whose name at least one of your friends seems to know). But when do things go too far? When do cute notes and a little harmless stalking become a potential crime?

We have all, at some point in our Facebook careers, witnessed a wall-post fight. The people involved hardly resort to outright using each others names, but we all know, most of the time, who they are talking to and what they are talking about. “Jane Doe is fed up with little boys trying to be men” and “J.D thinks some people need to get over themselves!” And so it goes on.

Most people think they know what freedom of speech is. That is, they know that, should they say something people do not agree with, they can call it freedom of speech and almost always get away with it. This is because people have the notion that the right to freedom of speech carries no responsibility. If they took the time to read the South African Constitution, they would see that, under chapter two, section sixteen, sub-section 1 of the Bill of Rights, one has the right to freedom of expression which includes, but is not exclusive to, freedom of speech. The part people tend to forget about is sub-section two which accompanies the first. It states that, “the right in subsection (1) does not extend to – (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.”

So, why was this man arrested if he was seemingly within his rights? Rhodes law student, Nambitha Ntshoko, explains that “freedom of expression does not exist in isolation; it exists within a context of other rights.” When exercising your right to freedom of expression, you also have to take into consideration the rights of the people you express yourself about. If their right carries a heavier weight than your right in court, if what you say about them can’t be justified or if you have harmed them in the way specified by the Bill of Rights, they can win a case brought against you.

It is not known if there are any similar reported incidents regarding the use of Facebook by students to defame, intimidate or harass other students at Rhodes. The IT department has no say as to what happens to the perpetrator – it is up to the University and whatever protocol applies to assess and punish, if necessary, offending students. So, should you say something that could deeply offend someone or a group of people, take note that there could be major repercussions because rights do come with limitations, limitations called responsibilities.

Facebook has, under their terms of use page, a link to their code of conduct which can be found under a sub-heading called ‘Inappropriate Content’. Similar ideas to that of the South African Bill of Rights are outlined. People are not allowed to post information that “makes threats of any kind or that intimidates, harasses, or bullies anyone; is derogatory, demeaning, malicious, defamatory, abusive, offensive or hateful.” However, Facebook is a global Internet site and every post cannot be constantly monitored. The best the Facebook administrators can do is terminate your account if they feel you have violated their terms of use. So, use Facebook to express yourself, to occasionally stalk beautiful people, but make yourself aware that you share the joy of Facebook with millions of other human beings who also have a Bill of Rights to protect them. It is up to you to make sure you do not let anyone tread on your rights in the process of exercising theirs. Should any of those people violate your rights, it is up to you to report that violation and watch your Constitution work for you.


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