TikTok and Defamation: Can You Be Sued For What You Post Online?

 

In  the era of viral content, "storytimes," and online call-outs, platforms like TikTok have become digital soapboxes - but what many users don't realise is that defamation law still applies, and in South Africa, you can be sued for what you post.

 

Whether you're naming and shaming a business, venting about a personal dispute, or warning others about a scam, it's important to know where freedom of expression ends and defamation begins. 

 

 

 

What Is Defamation Under South African Law?

 

Defamation in South African law refers to the unlawful publication of a statement that injures another's reputation in the eyes of society. Unlike some countries, defamation in South Africa is not a criminal offence - it is a civil delict (wrongful act). 

 

To succeed in a defamation claim, the plaintiff must prove:

 

  1. The statement was published to a third party;
  2. It referred directly or indirectly to them;
  3. It was defamatory - i.e., it had the tendency to lower their reputation or dignity.

 

Key Case Law: Le Roux v Dey [2011] ZACC 4; 2011 (3) 274 (CC)

 

  • The Constitutional Court held that a statement or an image that injures someone's reputation, even if satirical, can be defamatory if a reasonable person would view it as lowering their standing in society. 

 

But What About The Right To Freedom Of Expression?

 

South Africans enjoy the right to freedom of expression under Section 16 of the Constitution. However, this right is not unlimited - it must be balanced against the right to dignity and reputation. 

 

Key Case Law: Khumalo and Others v Holomisa 2002 (5) SA 401 (CC)

 

  • The Constitional Court acknowledged the importance of freedom of expression, particularly in the press - but confirmed that it must be balanced with the right to dignity, which includes reputation. 

 

Takeaway: Just because something is your opinion or you believe it to be true, this doesn't automatically shield you from liability. 

 

Can a TikTok Video Be Considered Defamatory?

 

Yes. TikTok videos are publications, and can be considered defamatory content if they:

 

  • Make harmful or false claims about a person or entity;
  • Imply criminal behaviour, dishonesty, or moral disgrace;
  • Cause reputational damage even without naming the person directly (e.g., if viewers can still identify them).

 

Key Case Law: H v W 2013 (2) SA 530 (GSJ)

 

  • The High Court found that Facebook posts that were harmful to another's reputation were defamatory - affirming that online statements carry the same legal weight as those made in print or in person. 

 

Truth, Public Interest and Other Defences

 

You can defend yourself in a defamation claim - but only under specific conditions.

 

The most common defences include: 

 

  • Truth and public interest: The statement must be factually correct and published for the benefit of the public.
  • Fair comment: Opinions are protected only if they're based on facts, relate to a matter of public interest, and are not made maliciously.
  • Privilege: Certain statements (e.g. in court proceedings or parliament) are protected by law.

 

Key Case Law: Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA)

 

  • The court reinforced the need to balance media freedom with reputational rights, noting that the truth alone is not a sufficient defence - public interest is also required. 

 

Common Defamation Pitfalls on TikTok

 

Avoid these high-risk behaviours if you want to stay on the right side of the law:

 

  • Naming and shaming individuals without proof
  • Implying criminal conduct ("She scams people", "He's absuive")
  • Telling a personal "story" where the person is identifiable
  • Using satire or parody in a way that injures reputation
  • Repeating or spreading harmful false claims posted by others

 

What Happens If You Are Sued?

 

If you are found liable for defamation, the court may order you to:

 

  • Pay general damages (compensation for reputational harm)
  • Issue a public apology or retraction
  • Remove the defamatory content
  • Cease further publication

 

In some cases, the damages awarded can be substantial - especially if the defamation went viral or caused serious reputational harm.

 

How to Protect Yourself When Posting on TikTok

 

  • Stick to verified facts, not rumours or speculation
  • Avoid identifying people unless absolutely necessary
  • Ask yourself: Is it true? Is it in the public interest? Am I being malicious?
  • Document your sources if you are posting serious claims
  • Consult an attorney if you're unsure about potentially hamful content

 

Final Thoughts:

 

TikTok is a creative platform - but it's not a legal loophole . South African courts treat online defamation as seriously as traditional media. So, before you post, vent, or call-out - think twice. You can be sued for defamation, even if your video starts with "no hate, just my opinion."