The Daily Mail in the UK recently published an article setting out some startling statistics pertaining to the incidences of social media being cited as the catalyst that led to a divorce.

According to the study, undertaken by Slater and Gordon, one in seven spouses felt strongly enough about their spouse’s Facebook posts that they considered divorce, while a similar number utilised social media platforms to uncover infidelity, and approximately one in five say spouses have regular arguments due to the manner in which their spouse utilises social media.

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The impact of social media is also often felt after the decision has been taken to divorce and the spouses are in the throes of the process. It is often almost impossible for an injured spouse to resist the urge to take to a social media platform and share their feelings regarding their spouse who has either injured their feelings by embarking on an extra-marital affair, failed to pay what they consider to be appropriate maintenance for children, or simply their feelings of anger simply due to the fact that their spouse has abandoned them.

On the other side of the coin are the divorcing spouses who publish pictures of new partners or joyful announcements at the fact that they have ditched their “old” spouse and are in the process of moving on to newer and better pastures.

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The law in South Africa that pertains to the publication of statements which may impact upon or be damaging to another, is the law of defamation, which is based on the “actio iniuriarum”. In simple terms this is a remedy that came from the Roman Law and gives the right to claim damages to a person (in a monetary amount) whose reputation have been intentionally damaged by the act of another.

A person alleging defamation need only show his or her existence in a particular society and the damage to his or her reputation – the statement in addition need not necessarily be false or untrue, however if it is true, to show that it is not defamatory, the perpetrator would need to produce evidence that the publication of the statement was, for example in the public interest or “fair comment” in their defence.

In the case of H v W 2013 (5) BCLR 554 (GSJ) the court in an application for an order interdicting a party from posting any comments concerning another on social media sites, had to weigh up the tension which arises between the right to privacy and the right to freedom of speech, both of which are enshrined in the Constitution.

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The matter involved a posting on Facebook, the author having posted a comment that portrayed the aggrieved party as a father who did not provide financially for his children, drank and utilised drugs excessively and did not care for his family. The court carefully considered the structure of Facebook and whether or not the statements in question were defamatory.

One of the most important aspects of social media in a family law setting must be the impact that the reckless posting of statements or pictures have on children who have access to the information by virtue of the age of technology within which we reside, and the ease with which children are able to navigate and utilise these platforms.

The bonds between parents and children are stretched to uncomfortable proportions in high conflict matters and the damage that can be caused by either or both parents resorting to social media to vent their anger or frustration (whether such statements or postings are defamatory or not) must be potentially substantial.

As more and more of what have become known as ‘twibel’ cases come to court overseas and in South Africa, the need for the exercise of restraint in speaking one’s mind on social media platforms is becoming greater. In the world of the family dispute, the requirement for the exercise of complete restraint should be enshrined as being one of the tenants of the protection of children from the adult conflict and relationship issues which abound.

For more information, email Gillian on gillian@lowndes.co.za or call 011 292 5777.  You can also follow Gillian’s blog.