When companies are confronted with defamatory remarks online, they have rights and recourse. Defamatory remarks posted online can taint a company's reputation and credibility. With the increased reliance on information found on the internet in modern society, it is essential to monitor online references to the company.
The requirement for defamation is : “the statement must be wrongful, intentional, published, and defamatory”.
A tirade goes beyond an opinion or a bad review. It would not be covered by the fair comment defence as the accusations would be malicious and of ill intent.
Defamation claims should be made for the right reasons and not as a mechanism to censor whistle-blowers. According to the public interest benefit defence, the complaint may be justified if it aims to raise public awareness of wrongful conduct, without malice.
It is worth also mentioning that Chapter XI of the ECT Act (Electronic Communications and Transactions Act, 2002) provides Internet Service Providers ( “ISP”), with limited liability if they are a member of an industry representative body recognised by the Minister of Communication such as the Internet Service Providers Association (ISPA).
This means that online platform providers (such as websites) are limited in their liability for content posted by their users, as long as they comply with the ISPA code of conduct and respond to takedown requests and court orders within a reasonable period of time as outlined in Section 77 of the ECT Act.
The ISPA, passes on the requests to the appropriate service providers, after verifying that the content is hosted on the accused organisation's network and that the remedial action specified by the complainant is feasible. According to their website, ISPA turnaround time is approximately three working days.
The ISP is not obligated to take down the content. Should an ISP declare a takedown request as not valid because it does not violate the law, it will carry the burden of proof in court. The ISP is unlikely to refuse since it will prefer limited liability, and in approximately 95% of all cases, filing a takedown notice results in that content being removed.
Identifying and tracking down the author of the tirade can lead to a court order for damages, removal, a retraction, and/or a provision barring further defamatory remarks. The damage is calculated by measuring the harm to your reputation. No actual loss needs to be proven.
Such complaints should be dealt with as soon as possible so that they do not further harm the organisation.
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