Problematic Issues Surrounding Transborder Cybersmear

• Jurisdiction: South Africa
• Pages: 360-387
• Published date: 25 May 2019
• Author: Sanette Nel
• Citation: (2010) 22 SA Merc LJ 360
• Date: 25 May 2019

Problematic Issues Surrounding Transborder

Cybersmear

SANETTE NEL*

University of South Africa

1 Introduction

With its worldwide, instantaneous reach, the Internet has transformed the

manner in which online users can communicate with each other and view

information. However, it has also provided a platform for employees to

defame their employers and for individuals to post false information on

f‌inancial bulletin boards or stock-related chat rooms, often referred to as

corporate cybersmear, which can cause real damage to a corporation and be

potentially devastating to its stock value. No company wants to learn that its

good name or that of a key employee is being attacked by unknown parties on

the Internet.

1

Today, many public and private companies face varied threats

from individuals using the Internet in ways that harm these businesses or their

management.

2

This discussion will focus on the constitutional protection of the right to

freedom of anonymous speech and the problems surrounding liability for

anonymous defamatory online speech, particularly where it concerns

transborder cybersmear. The comparative study will refer to the position in

the United States of America and the United Kingdom. As these jurisdictions

adopted the Internet as a mass communication tool quite some time before

South Africa, they have several more years’experience in dealing with legal

issues raised by the need to regulate the online environment, including

anonymity. From a SouthAfrican perspective, they offer valuable insights into

how similar problems could be dealt with in our own jurisdiction. The

challenge is to f‌ind a balance between, on the one hand, corporations and

individuals seeking to protect or repair their reputations and, on the other,

anonymous speech that is constitutionally protected.

3

In other words, the

problem lies in clarifying the boundaries of protected speech and defamatory

*BLC LLB (UP) LLM LLD (Unisa). Professor, Department of Criminal and Procedural Law, School

of Law, University of SouthAfrica.

1

Thomas J Donovan ‘Cybersmears & Cyberattacks: Protecting your Company’, available at

http://www.mclane.com/newsroom/articles/corporate/cybersmears.php.

2

According to John L Hines, Michael H Cramer & Peter T Berk ‘Anonymity, Immunity & Online

Defamation: Managing Corporate Exposures to Reputation Injury’ (2003) 4 The Sedona Conference

Journal at 97, disparagement is a weapon commonly used by disgruntled employees or former

employees to attack their corporate employers. As Donovan (op cit note 1) observes:

‘The Internet has lowered the cost of using this weapon, made it more effective and decreased the

likelihood that its employee-user will be detected. Corporate reputations are thus more at risk than

ever’.

3

Ronald Krotoszynski ‘Defamation in the Digital Age: Some Comparative Law Observations on the

Difficulty of Resolving Free Speech and Reputation in the Emerging Global Village’ (2005) 62

Washington & Lee LR 339 at 341ff.

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(2010) 22 SA Merc LJ 360

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statements where there is often such a f‌ine line distinguishing lawful criticism

from cybersmear.

4

The f‌irst practical problem that needs to be solved is to determine whom to

sue. If the defamatory comment was posted anonymously, the identity of the

unknown poster

5

of the defamatory statement needs to be determined. Where

an anonymous poster of defamatory messages has been traced to a particular

Internet Service Provider (ISP) or intermediary, the question is whether the

ISP or intermediary may choose to disclose the identity of such a poster. This

issue is discussed with reference to the privacy of the poster of the defamatory

statements. The next problem that needs to be overcome is the problem of

jurisdiction – in other words, to determine in which court to institute the

claim. Jurisdiction is dealt with differently in countries around the world:

some of these aspects are highlighted. Another problem is to determine the

choice of law applicable. Finally, a judgment given by a court of law is of

little value unless the judgment can be enforced. These problematic issues are

discussed and suggestions are put forward as possible solutions.

2 Background

2.1 General

The Internet has the capacity to replicate almost endlessly any defamatory

message. Even if a defamatory message on a sponsored discussion forum or

any other web site is read by only a handful of people, one of them can

republish the message by printing it and distributing it, or by forwarding it

instantly to another discussion board or e-mail address.

6

From this point

onwards, the speed at which it is republished and endlessly disseminated will

depend on the provocativeness of the message and the speed of the reader in

forwarding it. The rapid dissemination of defamatory messages to a large

audience by disgruntled employees is seen as a threat to corporations and can

be very damaging, even causing a corporation’s stock price to drop.

7

2.2Defamation: General Principles

For centuries it has been recognised in cultures all over the world that a

person’s reputation is of great importance. Over time, the law has developed

and currently acknowledges both an individual’s and a company’s right to be

4

S Wilson ‘Corporate Criticism on the Internet: The Fine Line Between Anonymous Speech and

Cybersmear’ (2002) 29 Pepperdine LR 533 at 542.

5

The term ‘poster’ will be used throughout this article to indicate anyone posting an online comment

on a blog, message board or personal pages (such as Facebook) – also generally referred to as a blogger.

6

LB Lidsky ‘Silencing John Doe: Defamation and Discourse in Cyberspace’ (2000) 49 Duke LJ 855

at 864.

7

DL Sobel ‘The Process that ‘‘John Doe’’ is Due: Addressing the Legal Challenge to Internet

Anonymity’ (2000) 5 Virginia Journal of Law and Technology 3 in par 12, available at

http://www.vjolt.net/vol5/symposium/v5i1a3-Sobel.html.

PROBLEMATIC ISSUES AS TO TRANSBORDER CYBERSMEAR361

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