Earlier this year, the Pretoria High Court in Native Child Africa (Pty) Ltd v Akinwale reminded social media influencers to ensure that they understand the terms and conditions stipulated in the contracts they conclude with brands. In this case, Mary Oluwatobiloba Akinwale was interdicted from posting defamatory statements which were prompted by her lack of understanding of her contractual obligations as a brand ambassador for Native Child Africa (Pty) Ltd (“NC Africa”).
Background
On 17 November 2023, Ms Akinwale, a social media influencer with a significant reach on social media, published various defamatory statements and videos about NC Africa, in which she allegedly accused them of inter alia exploitation and conducting unethical business practices. It is further alleged that she encouraged her followers to harass NC Africa by reposting her defamatory posts and approaching NC Africa’s major retail clients and urging them to stop selling their products.
According to NC Africa, since the publication of the defamatory statements, it has had over 80% decline in its revenue over the Black Friday period (when compared to revenue achieved in previous years over the same period) and has experienced a significant dip on purchase orders from one of its major retail clients.
NC Africa further alleges that it sought various means to engage with Ms Akinwale and it had asked her to cease her conduct and retract her defamatory conduct. However, its efforts were in vain. Consequently, as means to protect the brand from continuing reputational and financial damage, NC Africa instituted an urgent application for an interim interdict in which they sought an order to restrain, remove, retract, and an apology from Ms Akinwale.
Ms Akinwale admitted to posting the statements and that she lied in some of her posts. She further asserted that she had taken the posts down and that she was willing to apologise. It appears that the defamatory posts stemmed from her lack of understanding of her contractual obligations towards NC Africa. In terms of her contract, Ms Akinwale was required to reach certain targets in order for her to be entitled to receive R1600, which she failed to do.
The legal position
This matter was found to be urgent and it turned on whether Ms Akinwale’s conduct was defamatory and whether an interim interdict should be granted.
Was Ms Akinwale’s conduct defamatory?
In South African Courts, a two-stage enquiry test to is used to determine whether a statement is defamatory. Initially, this involves establishing the natural or ordinary meaning of the statement, followed by determining whether that meaning is defamatory. This is an objective test, where the Court has to determine what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test, it is accepted that the reasonable reader would understand the statement in its context and that they would have regard to what is expressly stated as well as what is implied.
In reaching the conclusion that Ms Akinwale’s statements were defamatory, the Court considered the following:
- Ms Akinwale claims that some of her statements were true, especially with regards to the fact that she was not paid by NC Africa. The court recognised that the truth is a common and potent defence in defamation cases, as true statements, even if damaging to someone's reputation, typically do not constitute defamation. However, there appears to be documentary evidence contradicting her statements which weakens her defence.
- Furthermore, relying on truth alone does not constitute a good ground of defence. It must also be to the public benefit or in the public interest that the statements be published.
- Ms Akinwale admitted to calling NC Africa “thieves” in one of her posts. “The term "thieves" is a strong and accusatory word, generally understood as imputing criminal behaviour. Such a statement can be seen as defamatory per se, meaning it is inherently damaging to the applicant's reputation without the need for additional context or explanation.”
- Ms Akinwale’s conduct also demonstrated a disregard for and lack of understanding of her contractual obligations with NC Africa. As a brand ambassador, Ms Akinwale was expected to uphold certain standards and conduct herself in a manner befitting that role. Instead, she conducted herself in a way that negatively impacted the brand's reputation, thus failing to fulfil her own contractual obligations.
- Ms Akinwale’s conduct was vindictive and self-centred with little consideration for the broader implications of her actions. In addressing disputes, the focus should be on constructive resolution rather than resorting to tactics that harm a brand's reputation.
Should the interdict be granted?
As per another case, Boshoff Investments (Pty) Ltd v Cape Town Municipality, the requirements for an interim interdict are as follows:
- There must be a clear or prima facie right, though open to some doubt;
- If the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and the applicant ultimately succeeds in establishing his right;
- The balance of convenience must favour the granting of an interim relief; and
- The applicant must not have other satisfactory remedies.
It is now established in our law that a trading corporation, such as NC Africa, has a right to its good name and reputation that can be enforced through a common-law claim for defamation. The Court found that an interim interdict should thus be granted and reasoned that:
“[NC Africa] has demonstrated a prima facie right, having been targeted by [Ms Akinwale]. Their image and reputation have suffered considerable damage. Without intervention to limit [Ms Akinwale’s] conduct, [NC Africa] faces the risk of irreversible harm due to this character defamation. As a social media influencer, [Ms Akinwale] might gain more followers, potentially enhancing her image while further harming [NC Africa]. The balance of convenience is skewed if such actions persist. Therefore, the most appropriate relief at this juncture is to impose a restraint on [Ms Akinwale], pending further legal proceedings.’
Conclusion
This judgment should serve as a caution to social media influencers to always attempt to resolve their disputes with brands amicably, rather than engage in a social media rant. Social media influencers and/or brand ambassadors are also reminded not to act in a way that contradicts their duties to assist in building a good reputation for brands.
The Court further advised companies and social media influencers to refer to the South African Human Rights Commission social media charter in their contract, which is an essential tool for educating the public about using social platforms responsibly, particularly in balancing the advancement of human rights with the prevention of defamation.
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Read the original publication at ENS