In today's digital age, opinions travel faster than ever before.
A Facebook post written in anger.
A WhatsApp message recorded or forwarded without verification.
A comment made in the heat of the moment.
Many people believe they are merely exercising their constitutional right to freedom of expression. What many do not realise is that freedom of expression carries legal responsibilities and consequences.
In Botswana, the law protects both freedom of speech and the right to one's good name and reputation. When the line between these rights is crossed, what begins as a simple post, comment, or forwarded message can quickly become a claim for damages before the courts.
At our office, we continue to observe disputes arising from social media publications, online accusations, WhatsApp messages, and statements made about businesses and individuals. In many instances, the person making the publication never intended to cause legal harm. Nevertheless, intention alone does not always determine liability.
The question therefore becomes:
Can a Facebook post get you sued?
Can forwarding a WhatsApp message make you legally liable?
Can freedom of expression become defamation?
The answer is yes.
Through the following fictional scenarios, we explore how ordinary people can unknowingly find themselves on the wrong side of the law.
PERSON A: MPHO – THE FACEBOOK POST
Mpho had a disagreement with Pearl, a local business owner. Frustrated and emotional, she took to Facebook and posted:
"This business is a scam. Deal with it at your own risk. People must stop supporting them."
The statement was false and unsubstantiated. What felt like "just an opinion" soon became something far more serious.
The post spread rapidly. Friends shared it. Comments poured in. Before long, Pearl's business began losing customers and experiencing a significant decline in sales. Concerned about the damage to her reputation and business, Pearl instructed her attorneys.
Soon thereafter, Mpho received a letter of demand. She was shocked. She never intended to defame anyone. She genuinely believed she was merely expressing herself. However, she had unknowingly crossed a legal line.
The reality is that defending a defamation claim can be costly. Whether successful or not, Mpho would now have to spend money instructing lawyers or defending herself in court.
A lesson emerged:
Just because you can post something does not mean you are protected from the consequences of posting it.
PERSON B: THATO – THE WHATSAPP FORWARD
Thato received a message in a WhatsApp group stating:
"Warning: This company Y is involved in fraud. Share to protect others."
Without verifying the information, he forwarded the message to other groups and contacts. The message spread rapidly. There was only one problem. The allegations were false. The affected company investigated the source of the publication and eventually traced the spread of the message.
When confronted, Thato's defence was simple:
"I didn't write it. I only forwarded it."
However, the law takes a different view. In defamation law, repetition is also publication. A person who repeats, republishes, shares, or forwards a defamatory statement may be held just as liable as the person who originally created it.
What began as a simple forward suddenly exposed Thato to potential legal proceedings.
THE LAW BEHIND THE WORDS
In Botswana, the law of defamation balances two important rights.
As stated in Dikgang Publishing Company and Another v Mokobi (CACGB-092-17): "The law of defamation lies at the crossroads of two fundamental rights, namely freedom of speech, including freedom of the press on the one hand, and the protection of the reputation and good name of an individual on the other."
Botswana courts have consistently upheld this principle. The courts have made it clear that false statements which harm another person's reputation may attract legal consequences regardless of the platform on which they are published.
WHAT AMOUNTS TO DEFAMATION?
A statement is generally defamatory where:
- It is published to a third party(s)
- It refers to an identifiable person or business
- It is wrongful
- It was made intentionally or negligently
- It is false
- It harms reputation
This includes:
- Facebook posts
- X (Twitter) posts
- WhatsApp messages
- Comments, shares and forwards
IMPORTANT LEGAL POSITION
Botswana courts recognise that:
- A person who publishes a defamatory statement may be liable
- A person who repeats or shares a defamatory statement may also be liable
- Liability often depends not only on intention but also on the effect of the publication
DEFENCES TO DEFAMATION
It is equally important to understand that not every statement which damages another person's reputation amounts to defamation. The law recognises a number of defences.
Truth and Public Benefit. One of the strongest defences is truth. If a person can prove that what was said or published is substantially true and that publication was for the public benefit, they may avoid liability.
Qualified Privilege. The law also protects certain communications made in circumstances where a person has a legal, moral, social, or professional duty to communicate information.
Fair Comment. The law protects honest opinions on matters of public interest provided the comment is genuinely an opinion based on true facts, made fairly and without malice.
A PRACTICAL RULE
Before posting, sharing, forwarding, or commenting, ask yourself:
- Is it true? | Can I prove it?
- Am I expressing an opinion or alleging a fact?
- Could it damage someone's reputation?
- Would I be comfortable defending this statement before a judge?
WHEN TO SEEK LEGAL ADVICE
You should seek legal advice if your reputation or business has suffered harm because of a publication, or if you have received a formal legal complaint.
CONCLUSION
Freedom of Expression is a constitutional right protected by Section 12 of the Constitution of Botswana. Section 12 expressly permits limitations on freedom of expression where reasonably necessary to protect the reputations, rights, and freedoms of others. Freedom of speech is a right WHEREAS Defamation is a risk.