Assignment 2

Name(s): Mabe Master Unique Number: 615825

Module: LCR3701

Student No: 67343880

Due Date: 30 April 2024

Question 1

(a) Mr. X has a right to protect his reputation in terms of section 16 of the
Constitution, which guarantees freedom of expression but also acknowledges
that this right must be balanced against other rights, such as the right to dignity
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and privacy . Section 36 is the limitation clause and serves as a tool to strike a
balance on rights holistically. Mr. X should also know that defamation is dealt
with by common law principles evolving from legal precedent. Now, Mr X should
consider the following steps to address this issue of defamation:

Firstly, Mr X should establish the defamation by gathering evidence that

explicitly demonstrates that the statements made about him are defamatory.
This can be done by taking screenshots of such defamatory statements made
on the internet about him.

Secondly, Mr. X should draft a formal complaint letter addressing the West-
World Internet to remove the defamatory contents. Hence, the letter should be
explicitly specific in identifying those contents that are defamatory. In addition,
Mr. X should also inform West-World Internet what is his legal actions
concerning this matter if is not resolved. In the letter, he can rely on the case of
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National Media Ltd and Others v Bogoshi. In this case, the Supreme Court of
Appeal laid out the basic guidelines on how to understand defamation.

(b) If West-World Internet Ltd which is the defendant in this matter fails to
remove defamatory contents or messages. The defendant may rely on the
following defenses considering both South African and United Kingdom legal
position:

Defences in South Africa

The defendant should consider the messages whether are true and whether
they are of public benefit. In other words, if the statement made about Mr X is
true and serves the public interest, it can be a defense against defamation.

Hence, expressing an opinion based on facts is generally protected. The

defendant can argue that the statement was an honest opinion rather than a
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factual claim. If the defendant issues an apology for the defamatory content, it

1
Section 16, Act 88 of 1996, (hereinafter reffered as the Constitution).
2
National Media Ltd and Others v Bogoshi [1998] ZASCA 56, 1998 (4) SA 1196.
3
Conradie v S (CCT224/17) [2018] ZACC 12 heads of argument.
may mitigate damages as it was held in the case of Conradie v S. Lastly, the
West-World Internet should choose to follow the guidelines indicated in the
matter between Manuel v Economic Freedom Fighters and Others. In this case,
the High Court of South Africa considered defamatory statements made on
social media. The court extended the application of the reasonableness defense
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and addressed issues related to the repetition of defamatory content online.

Defences in the United Kingdom

The defendant should consider innocent dissemination as a defense. Under the

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Defamation Act 1996 , an ISP or hosting website can claim a defense if it can
show that it was not the author, auditor, or publisher of the defamation
statement. This defense applies when the defendant merely disseminated the
content without being actively involved in its creation.

In the UK section 1(1) of the Defamation Act 1996, enshrines the defense of
innocent dissemination. It protects intermediaries (such as ISPs) from liability if
they can prove they were not responsible for creating or editing the defamatory
statement.

The position of the United Kingdom in respect of defamation is that it

recognises the importance of balancing freedom of expression with the
protection of reputation. In other words, courts consider the role of the
intermediate and their level of involvement in publishing defamatory content.

In summary, West-World Internet Ltd may rely on defenses such as innocent

dissemination and truth if applicable.

(c) Yes, the West-World Internet can reveal the identity of the defamer.
However, in South Africa, there are no specific judgments that directly address
this issue of revealing the identity and address. As a result, it is crucial in some
instances for the ISPs to assist potential plaintiffs by identifying users. The
service provider's cooperation in reviling the name and address of the user can
aid in pursuing legal action against the defame. South African courts have not
explicitly ruled on this matter, but principles of reasonableness and cooperation
may apply. In addition, the Electronic Communications and Transactions Act
may also play a role in balancing privacy rights and the need for disclosure.

In the case of the UK legal perspective, innocent dissemination may be of

specific influence in this matter. Under the Defamation Act 1996, ISPs and
website hosts can claim a defense if they are not the author, editor, or publisher
of the defamatory statement. In other words, if West-World Internet Ltd merely
disseminated the content without active involvement, they may rely on this
defense.

In terms of section 1(1) of the Defamation Act 1996, intermediaries may be

protected from liability if they can prove they were not responsible for creating

4
Manuel v Economic Freedom Fighter and Others [2019] ZAGPJHC 157,13349/19 ZAGPJHC 157
(30 May 2019).
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Defamation Act 1996. (UK).
or editing the defamatory statement.

(d) Defamation is a civil wrong that occurs when a person communicates false
and damaging statements about another person, either in writing or verbally.
The elements of defamation, specifically publication of a mean statement must
be bommunicated to a third party, in a nutshell, meaning it has been made
known to someone other than the person making the statement and the
subject of the statement. Furthermore, the use of secret language does not
alter the concept of publication. If a third party comprehends the defamatory
content, publication has occurred. Whether the language is secret or not, the
act of reading the email constitutes publication.

The secret nature of the language does not exempt it from being considered a
form of publication. South African legal framework in respect of defamation is
clear in terms of the use of secret language in defamation in publication. It does
not distinguish between secret and non-secret language in terms of the
defamation. In a nutshell, if the recipient understands the defamatory content, it
constitute publication, regardless of the language used.

I chose the following sources below because they cover various aspect of
defamation law in South Africa, including online defamation, common law
principles, and the balance between freedom of expression and reputation
protection.

(e) Lyer, D. (2018). An Analytical Look Into the Concept of Online Defamation in
South Africa.

MBL Attorneys (2023). Defamation in South African.

TrustLaw. Defamation Laws in South Africa.

Law For All. Social Media and Defamation in South Africa.

Alt Advisory (2019). Social Media and Defamation: Online Guidance from Manuel
v EFF.

Question 2

(a) Yes, the employer can check the profile candidate on social media networks
and includes information from these in the screening process. This kind of
decision is not wrong if it is done in the parameters of the law. The Protection of
Personal Information Act 4 of 2013 does allow that, however that process should
be in the parameters of the law. The POPIA, aims to safeguard personal
information processed by both public and private entities. Now, in the case of
the employer and the candidate, POPIA establishes minimum requirements for
processing information such as promoting the protection of individuals privacy
rights and setting conditions for handling personal data.

Thus, it is the duty of the employer in this regard to comply with POPIA when
collecting, using or disclosing the personal information of the candidate for
screening process. Hence, it is necessary for the employer to inform candidates
about the purpose of collecting their data. In addition., the employer should be
transparent, in other words, candidates should be aware of how their
information will be used by the employer.

In contrast, if the employer access a candidates information shared publicly on

social media is not a contravention of any law. It can only constitute a
contravention of the law if the process does not comply with POPIA and other
piece of legislation which safeguard the privacy of an individual. In other words,
employers should exercise caution by taking into consideration to the following
factors;

Consent: employer should obtain consent from candidates before accessing

their social media profiles.

Relevance: the information gathered must be relevant to the job role and not
infringe on privacy rights.

Non discrimination: employers must avoid discriminatory practices based on

social media findings.

(b) Information found in the candidate’s inbox on a social network is protected

by RICA and other piece of legislation. Regulation of Interception of
Communications and Provision of Communication-related Information Act is
applicable to a situation whereby information is found in a candidate’s inbox on
social network based on this scenario above. This Act, aims to regulate the use
of certain electronic devices and the right to obtain, access, or intercept a
person's electronic communication. It provides guidelines for law enforcement
agencies when intercept of communications is involved.

Now, how does it relate or how does it apply to the candidate’s inbox on a social
network? If the employer accesses a candidate’s inbox on social network, it
involves intercepting electronic communication. Therefore, the possibility that
during the interception no consent was acquired. Therefore, it is necessary that
employers to be cautious, ensuring compliance with Rica and respecting the
candidate’s right to privacy.

2.2

(a) Yes, the use of geolocation information is qualifies as processing of personal

information under Protection of Personal Information Act 4 of 2013. In terms of
section 1 of the POPIA, "processing" as any operation or activity concerning
personal information includes collection, storage, retrieval, alteration,
dissemination, and destruction of data. In addition, processing encompasses a
wide range of actions related to personal information. Now, personal
information in terms of section 1, refers to an identifiable, living natural person.
This may include details such as names, addresses, identification numbers,
location data, and online identifier.

In terms of this definition of personal information according to the Act,

geolocation data falls within the scope of personal information. Thus, the use of
geolocation data constitutes "processing of personal information". If it constitute
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personal information the provisions of POPIA applies . In other words, consent is
required in processing personal information. Hence, such app sought user
consent for geolocation activation. However, the automatic activation without
user consent in the updated version violates this requirement.

In order to comply with POPIA, the app should revert to explicit consent for
geolocation activation. Users must be clearly informed about geolocation usage
and its impact on privacy. In summary, the use of geolocation information in the
EasyGuide App constitutes processing of personal information under POPIA.
The automatic activation without user consent should be rectified to ensure
compliance.

(b) In terms of section 1 of this Act,"Responsible Party" refers to: A public or

private body, or any other person. This entity, either alone or in conjunction with
others, determines the purpose and means for processing personal information.

In other words, a responsible party is the entity that decides why and how
personal information is processed. How does it apply to XYZ, in this scenario?
The XYZ, developed the App which collects and process users geolocation data.
So, XYZ determines the purpose of processing and the means. Therefore, in that
manner XYZ qualifies as a "responsible party" under POPIA.

(c) POPIA is applicable to the scenario based on the Act's application provisions
in section 3(1). In terms of this section XYZ processes users geolocation data in
other words personal information to provide location based services. Therefore,
the processing of geolocation data falls within the scope of POPIA. Based on
section 3(1), POPIA is indeed applicable to XYZ's use of geolocation information
in the EasyGuide App.

(d) XYZ, do have grounds for process the geolocation information of the user. In
terms of section 11 of the Protection of Personal Information Act, processing
personal information is allowed if it protects a legitimate interests of the data
subject or if it is ne3for persuing the legitimate interest of the responsible party
or a third party to whom the information is supplied. In this case, the App's
purpose of finding nearby businesses based on geolocation serves a legitimate
interest, allowing the use of this information.

(e) There are grounds of justification for XYZ. The following grounds are
recognized by POPIA and can be used to justify the geolocation function after
updating the EasyGuide App;

XYZ could argue that the automatic activation serves a legitimate interest. The
automatic activation of geolocation enhances user experience. Furthermore,
XYZ may justify automatic activation based on technical necessity. Lastly, XYZ
could provide a clear ar information during the App update and consent in
previous versions, in other words, XYZ can highlight that in previous versions,
users explicitly consented to geolocation activation.

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Protection of Personal Information Act 4 of 2013.