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Question 1
1. Mr. Tom is a businessman who owns a pharmaceutical company (Pharmcare (Pty) Ltd) in
Pretoria, South Africa. His business is thriving and one day as he is scrolling through social
media, he is shocked to find out that a fake profile has been set up in his name on a social media
platform. The fake profile was set up for Mr. Tom and includes information such as his date and
place of birth, relationship status and religious views. There is also a fake group linked to the
fake profile. It contains statements defamatory of him and his pharmaceutical business,
Pharmcare (Pty) Ltd. It is alleged that he “owes money and does not pay his suppliers” and
furthermore that he is “not to be trusted since he applies unethical financial business practices
and the products, he sells in his pharmaceutical company are not of a good standard.” Mr. Tom
consults you as his attorney. Advise him with respect to the following:
A) What should Mr. Tom do to remove the fake profile from the social media platform?
B) Could the internet service provider (ISP) be held liable for the defamatory statements posted
on their social media platform by users thereof? Discuss in detail by referring to court cases,
legislation (if applicable), and academic commentators. Also refer to the position in other
jurisdictions.
Answer 1
Mr. Tom, a successful businessman in Pretoria, South Africa, discovers a fake social media profile
impersonating him. The profile, alongside a linked group, disseminates defamatory information
about him and his pharmaceutical company, Pharmcare (Pty) Ltd. The fake profile's content includes
false accusations of unethical business practices and substandard products. Mr. Tom seeks legal
advice on how to remove the fake profile and whether the ISP can be held liable for the defamatory
content.
A) Steps to Remove the Fake Profile
Mr. Tom should follow several steps to remove the fake profile and defamatory content. First, he
should formally report the fake profile to the social media platform, citing the platform's terms of
service, which typically prohibit impersonation and defamation. Many platforms have a reporting
mechanism that allows users to flag content for review. When reporting, Mr. Tom should provide
evidence of his identity and ownership of the business to facilitate the removal process.
If the platform does not respond promptly or effectively, Mr. Tom can escalate the issue by issuing
a Section 77 take-down notice under the Electronic Communications and Transactions Act 25 of
2002 (ECT Act). This section allows individuals to request the removal of unlawful content from
the internet. The take-down notice must be directed to the ISP or the host of the content. Mr. Tom
needs to include detailed information, such as the URL of the fake profile, a statement confirming
that the content is unlawful (i.e., defamatory), and his contact information.
If the fake profile is not removed within a reasonable time, Mr. Tom may consider pursuing legal
action against the platform, possibly obtaining an interdict (court order) compelling the removal of
the content.
