, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
QUESTION 1
a) What should Mr. John do to remove the fake profile from the social media platform
Mr. John has several legal remedies available to address the fake profile and the defamatory content
posted on the social media platform.
Mr. John should report the fake profile directly to the social media platform, as all major platforms
have policies prohibiting impersonation and harassment. He must gather evidence, including
screenshots of the fake profile, the defamatory statements, the fake group, and the URL of the profile,
before using the platform's reporting tools to formally report the profile as a fake/impersonation
account.
If the platform fails to respond, Mr. John may issue a takedown notice in terms of section 77 of the
Electronic Communications and Transactions Act 25 of 2002 (ECT Act) to the service provider of
the social media platform.¹ Such a notice must be in writing, addressed to the service provider or its
designated agent, and contain the complainant's full names and address, identify the unlawful
material, state the remedial action required, and include a statement that the complainant is acting in
good faith.² However, South African Acts do not have extra-territorial application, and since most
large social media platforms are based abroad, a takedown notice may not be effective against a
foreign platform.³
A third option is to apply for a court interdict. In H v W and Dutch Reformed Church Vergesig v
Sooknunan, our courts granted interdicts to have defamatory content removed from Facebook.⁴ In H
v W, the court ordered the removal of defamatory postings from Facebook.⁵ In Dutch Reformed
Church Vergesig v Sooknunan, the court held that the creator of a Facebook profile is responsible for
posts made on the profile wall and has an obligation to remove unlawful content.⁶ The court also
held that an interdict is a suitable remedy where an apology in the same medium would have gone a
long way towards mitigating the plaintiff's damages.⁷
Mr. John should apply for a final interdict, as the requirements are: (a) a clear right (his right to a
good name), (b) an actual infringement of that right (the defamatory statements were published), and
(c) the absence of another suitable remedy.⁸
¹ Van der Merwe et al, Information and Communications Technology Law (2016) 544 (par 10.2.7.1B(d)).
² LCR4805 Study Guide 40; Van der Merwe et al (2016) 547-548 (par 10.2.7.1B(d)).
³ Van der Merwe et al (2016) 548 (par 10.2.7.1B(d)).
⁴ LCR4805 Study Guide 36.
⁵ H v W (2013) ZAGPJHC 1.
⁶ Dutch Reformed Church Vergesig Johannesburg Congregation and Another v Rayan Sooknunan t/a Glory Divine World Ministries 2012
(6) SA 201 (GSJ) para 49.
⁷ Isparta v Richter and Another 2013 (6) SA 529 (GNP) para 40; LCR4805 Study Guide 36.
⁸ Setlogelo v Setlogelo 1914 AD 221 227.
QUESTION 1
a) What should Mr. John do to remove the fake profile from the social media platform
Mr. John has several legal remedies available to address the fake profile and the defamatory content
posted on the social media platform.
Mr. John should report the fake profile directly to the social media platform, as all major platforms
have policies prohibiting impersonation and harassment. He must gather evidence, including
screenshots of the fake profile, the defamatory statements, the fake group, and the URL of the profile,
before using the platform's reporting tools to formally report the profile as a fake/impersonation
account.
If the platform fails to respond, Mr. John may issue a takedown notice in terms of section 77 of the
Electronic Communications and Transactions Act 25 of 2002 (ECT Act) to the service provider of
the social media platform.¹ Such a notice must be in writing, addressed to the service provider or its
designated agent, and contain the complainant's full names and address, identify the unlawful
material, state the remedial action required, and include a statement that the complainant is acting in
good faith.² However, South African Acts do not have extra-territorial application, and since most
large social media platforms are based abroad, a takedown notice may not be effective against a
foreign platform.³
A third option is to apply for a court interdict. In H v W and Dutch Reformed Church Vergesig v
Sooknunan, our courts granted interdicts to have defamatory content removed from Facebook.⁴ In H
v W, the court ordered the removal of defamatory postings from Facebook.⁵ In Dutch Reformed
Church Vergesig v Sooknunan, the court held that the creator of a Facebook profile is responsible for
posts made on the profile wall and has an obligation to remove unlawful content.⁶ The court also
held that an interdict is a suitable remedy where an apology in the same medium would have gone a
long way towards mitigating the plaintiff's damages.⁷
Mr. John should apply for a final interdict, as the requirements are: (a) a clear right (his right to a
good name), (b) an actual infringement of that right (the defamatory statements were published), and
(c) the absence of another suitable remedy.⁸
¹ Van der Merwe et al, Information and Communications Technology Law (2016) 544 (par 10.2.7.1B(d)).
² LCR4805 Study Guide 40; Van der Merwe et al (2016) 547-548 (par 10.2.7.1B(d)).
³ Van der Merwe et al (2016) 548 (par 10.2.7.1B(d)).
⁴ LCR4805 Study Guide 36.
⁵ H v W (2013) ZAGPJHC 1.
⁶ Dutch Reformed Church Vergesig Johannesburg Congregation and Another v Rayan Sooknunan t/a Glory Divine World Ministries 2012
(6) SA 201 (GSJ) para 49.
⁷ Isparta v Richter and Another 2013 (6) SA 529 (GNP) para 40; LCR4805 Study Guide 36.
⁸ Setlogelo v Setlogelo 1914 AD 221 227.
