HIGH Court Justice Joseph Mafusire’s order for Zimbabwean lawyer and author Petina Gappah to pay fellow attorney and political activist Fadzayi Mahere US$18 000 for defamation has set a local precedent and is instructive.
The judgment has reminded or shown the digital community that they must be aware that their online activities, including commenting, sharing, liking, and tagging, can have legal consequences.
Mafusire noted that Gappah’s reckless defamatory comments were “malicious and sustained,” warranting the substantial damages awarded to Mahere.
Besides the US$18 000 in damages, Gappah has also been ordered to pay an annual interest of 5% on the amount from the date of the judgment until the full payment is made.
Additionally, Gappah will also pay Mahere’s legal costs.
This has sent a clear message that people cannot hide behind social media to defame others and get away with it.
Prior to the judgment, the judge had said Gappah needed “psychological intervention” — mental assistance — amid her unrestrained attacks on the judge and the judiciary after losing interlocutory battles on the US$1 million defamation suit filed against her by Mahere.
Mahere dragged the ironically vocal and litigious Gappah, an international trade lawyer who describes herself as a “globalist” and “multilateralist”, to court on defamation charges in 2018.
Mahere was demanding US$1 million in damages. In a series of tweets posted on 29 September 2018, Gappah made a number of scurrilous accusations against Mahere.
Gappah, among other things, claimed Mahere did not qualify to study law at the University of Zimbabwe and was only admitted because of her father’s influence.
Her father, Stephen Mahere, once served as the permanent secretary in the ministry of Education, Sport, Arts and Culture.
Gappah further claimed Mahere only got admitted to Cambridge University in the United Kingdom after she had edited and almost completely rewritten her application essay.
She also said her fellow “learned friend” doctored her curriculum vitae to embellish it, which is fraudulent.
In a further vituperative attack, Gappah said Mahere had attempted to sleep with her partner, which seemed to be the source of her uncontrollable rage.
Later during proceedings, Gappah accused Mahere of sleeping with people’s husbands, saying “my witnesses will testify that if anyone is to blame for her reputation as a ‘woman of low morals’, it is the plaintiff (Mahere) herself who has earned that reputation for herself, separately from anything I have said.”
She added: “I will show that her reputation is in fact that of a serial mistress renowned for her affairs with married (men).”
However, Mafusire said Gappah’s “torrent of abuse decluttered, the following allegations or insinuations must rank as the nadir of dishonour”.
This led to his unprecedented defamation judgment in Zimbabwe in the social media context.
Many social media users operate under the false assumption that they can express their opinions without facing any consequences.
It is essential to understand that the law of defamation applies equally to speech on social media as it does to conventional forms of communication.
Courts are adapting to the challenges posed by new technologies and extending traditional legal principles to address these issues.
In an article, titled From Posts to Courtrooms: Defamation on Social Media, South Africa’s CK Attorneys Inc says:
“In today’s digital age, social networking sites like Facebook, Instagram, and X, formerly
Twitter, have become ubiquitous platforms for sharing opinions, thoughts, and information.
“However, many users operate under the false assumption that they can voice their opinions without facing any consequences.
It is essential to understand that the law of defamation applies equally to speech on social media as it does to traditional forms of communication.
Courts are adapting to the challenges by new technologies and extending traditional legal principles to address these issues.
As per DP van der Merwe in Information and Communications Technology Law (2021), when evaluating issues related to freedom of speech on social media, courts have acknowledged the complex nature of online expression.
“The South Gauteng High Court has noted that ‘expression may often be robust, angry, vitriolic, and even abusive’.
Each case must be examined in its context, considering the nature of the debate, the individuals involved, the language used, and the content published.
The requirements for a temporary interdict include a prima facie right, a well-grounded apprehension of irreparable harm, a balance of convenience, and the absence of other satisfactory remedies.
A final interdict requires a clear right, actual or threatened infringement, and no suitable alternative remedy.
Courts are cautious about granting interdicts that might infringe on free speech, favouring actions for damages instead.
Prior restraint on free speech is generally not preferred, except in exceptional circumstances.
The principles of defamation law are fully applicable to social networking sites.
“Users must be aware that their online activities, including sharing, liking, and tagging, can have legal consequences.”
