Freedom of speech as not a free pass — especially online.
The Power (and Risk) of Online Reviews
We all do it — Google a restaurant, scan Facebook comments about a contractor, or check HelloPeter before hiring a plumber. Online reviews are today’s word-of-mouth, with real power to influence buying decisions.
What happens, then, when you post a harsh review, and the business threatens to sue you?
The Law of Defamation in South Africa
In South African law, defamation is the “intentional infringement of another’s right to his good name, or, more comprehensively, the wrongful, intentional publication of words or behaviour concerning another which has the tendency to undermine his status, good name or reputation”.1
Online reviews fall squarely within the scope of “publication”, and South African courts have repeatedly confirmed that digital platforms like Facebook, Twitter (now X), and Google reviews are not exempt from defamation law.2 Moreover, “it is not good enough, as a defence to or a ground of justification for a defamation, that the published words may be true: it must also be to the public benefit or in the public interest that they be published”3 , bearing in mind that ‘what is interesting to the public’ is not one and the same as ‘what it is in the public interest to make known’.4
What Must Be Proved?
To succeed in a defamation claim, simply put, a plaintiff must show that:-
- the review was published (seen by a third party);
- it referred to the plaintiff; and
- it damaged their reputation.
The law presumes the publication is wrongful and intentional, unless the reviewer can raise a valid defence.
Is the Review True and in the Public Interest?
The most common defence to defamation is that the statement was true and published in the public interest.
Thus if your review truthfully describes a real experience — and you weren’t acting maliciously — it may well be protected, however you carry the burden of proving its truth.5
What About Opinions?
Another key defence is “fair comment”. South African law allows people to express opinions — provided that:-
- the opinion is based on facts that are true and accurately stated
- the comment relates to a matter of public interest
- the opinion is honestly held. “Malice or improper motive by the perpetrator of the comment also acts to defeat the defence of fair comment”6;
Calling a hotel “disgusting” may be protected opinion — but falsely claiming they had bed bugs and refused a refund could be defamatory.
What if I Delete the Review?
Once published, the harm is done — and deleting the post will not necessarily stop legal proceedings. However, it may help reduce damages or show a willingness to mitigate harm.
When Do Reviews Cross the Line?
Reviews become risky when they:
- make false factual claims;
- are posted out of spite or for revenge;
- use offensive or threatening language; or
- reveal private or confidential information.
In H v W, the High Court awarded damages against someone who posted defamatory Facebook comments about a friend’s former partner, holding that online speech enjoys no special protection.7
What Can a Business Do in Response?
- Ask the reviewer to remove or edit the post
- Publish their own public response
- Send a lawyer’s letter of demand to cease-and-desist
- Seek an interdict or damages in court
So Can I Be Sued?
Yes — but only if your review is defamatory, untrue, and unjustified. If your comments are honest, fact-based, and not malicious, the law generally protects your right to speak out.
Practical Tips for Posting Reviews
- Stick to the facts and your personal experience
- Avoid exaggeration or sweeping claims
- Use respectful language, even when criticising
- Do not post in anger — draft, pause, review
Do you Need Help Responding to a Review or Threat?
At Waldeck Attorneys, we advise individuals and SMEs on reputational risk, online defamation, and how to handle reviews — good and bad. Contact us if you are facing a legal threat over a review or need help protecting your name or your brand online.
Citations:
1. Neethling, Potgieter and Visser Deliktereg 5 ed (2006) 325.
2. H v W [2013] ZAGPPHC 1.
3. See Financial Mail (Pty) Limited v SAGE Holdings Limited [1993] ZASCA 3; 1993 (2) SA 451 (A) at 464C; Argus Printing & Publishing Company Limited and Others v Esselen’s Estate 1994 (2) SA 1 (A) at p25B-E; National Media Limited and Others v Bogoshi 1998 4 SA 1196 SCA at p1208G-J
4. Ibid.
5. Khumalo v Holomisa 2002 (5) SA 401 (CC).
6. See Marais v Richard en ’n Ander 1981 (1) SA 1157 (A) at p1170A-C and Jansen Van Vuuren and Another NNO v Kruger [1993] ZASCA 145; 1993 (4) SA 842 (A) at 850H-I.
7. H v W [2013] ZAGPPHC 1.