“Did we defame them?”

We were accused of defamation recently. With great subtlety and courtesy, it was suggested that we had defamed an organisation by permitting posts on our Facebook group to remain and not deleting them.

In fact over the last few weeks, defamation has been in our minds quite a lot. It started with the subtle threat. A member of the group posted a message reporting a problem she’d experienced in a well-known service provider (who for now can remain nameless). Her problem was the length of time she and a relative had been forced to wait before being served: several hours. Her post was reasonable worded and I thought it was polite. What she really wanted was advice. “I want to log a complaint, where do I start?”

So far, so good. I forwarded the complaint to the Managing Director of the establishment and his response was swift. “We have started investigating the matter.” He also promised a very swift investigation. However it wasn’t all positive. He also said that if the “allegation turn out to be false we will this time around have to consult with our lawyers to consider a defamation suit”.

That really isn’t very good, is it? If the complaint is valid they’ll take action to fix the problem and if not they’ll drag their critic to court to get revenge?


Let’s talk law. Defamation is defined in the Penal Code as “matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation.”

The first question I’d ask is whether this particular organisation actually has a reputation that could be damaged? In fact I think it would be hard to find many people who have a good opinion of them. I certainly don’t.

Meanwhile there are various defences to the accusation of defamation. For instance, you are permitted to say something defamatory if “the matter is true and it was for the public benefit that it should be published”. I think it’s clear that if the public would be concerned about delays in this company and that customer genuinely did experience the delay she claims then she’s allowed to say so. More importantly the law also permits you to make reasonably expressed complaints so long as “it was published in good faith”. In other words so long as you aren’t being malevolent you’re allowed, in a free country likes ours, to express your opinions about how a person or a company operates. It’s called free speech. The company might not like it, but it’s a right protected by the law.

Unfortunately their approach worked. Under pressure from them the woman deleted her comments and felt herself forced to apologise to them.

Consumer Watchdog is not as easily bullied.

On the other hand, just a few days later we had another post on our Facebook group that WAS defamatory. A member posted a complaint saying that he felt he’d been short-changed by a store when he’d paid P100 for airtime but had only been given P10. His mistake was then to post pictures of the managers at the store and to use the word “thieves” in his comments. The fact is that even if he did feel that they hadn’t responded well to his complaint his comments were unacceptable and I removed them as soon as I saw them. I contacted the guy and suggested that he was welcome to complain, but he needed to moderate his comments to stay on the right side of the law.

Over the years, we’ve had a few encounters with organisations that have said they’ve felt defamed by various things we’ve said on the radio or written here in Mmegi. To their eternal credit every time this has happened I’ve contacted the team at Mmegi and explained what’s going on. Their response has always been the same.

What you said was true and you can prove it. Bring it on.

There was the holiday club that really objected to us describing their customer agreements as “lifetime contracts” even though they wouldn’t let their customers cancel the “irrevocable offer” they were required to make to join the scheme. They came to see us to insist we retracted the suggestions accompanied by their lawyer only to find that we don’t scare that easily, particularly when we seemed to know the law on defamation better than their lawyer did.

Then there was the car firm that objected when we suggested that one of their South African dealers “are incompetent, discourteous and have shown massive contempt to one of their customers”. This was the dealer that had failed to repair the car belonging to a customer in Botswana for nearly a year. They also “lawyered up” and threatened us with hell and damnation unless we retracted our comments.

We didn’t. In fact we told their lawyers what we thought of their client’s bullying approach to criticism and we didn’t hear from them again.

There was even the legal threat we received from a lawyer representing a rather suspicious debt collector who threatened to sue a client for defamation for something that appeared in this column in Mmegi even though she didn’t write it, I did. A letter to the lawyer telling him to bugger off (metaphorically) did the trick.

    The lesson about defamation is a simple one. If someone says something bad about you or your organisation you have a couple of choices. If what they say is genuinely untrue and damaging then get your cheques book ready and talk to a lawyer. Otherwise just learn to take criticism like a grown-up.

 

If you have any consumer issues please get in touch.  Email us at [email protected], by post to P. Box 403026, Gaborone or by phone on 3904582 or fax on 3911763.  Read the Consumer Watchdog blog at consumerwatchdogbw.blogspot.com and join our Facebook group called “Consumer Watchdog Botswana”.

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