HELP!!! Someone has pronounced me dead on their WhatsApp Status by Amanda Nutakor

Dear April,

A stranger without my knowledge obtained my picture, posted it on their status and captioned it ‘RIP dear’. The post spread and has caused a great inconvenience in my life. Family and friends have all been contacting me through incessant phone calls, messages and emails for weeks to find out the truth whilst some acquaintances and colleagues at work automatically took the post to be true. Is there any course of action available to me? Please help!

Signed,

Anonymous

Dear Anonymous,

I am very sorry to hear about your situation. In the current era of social media, all kinds of information is  published to the public without being  double-checked for accuracy. Unfortunately, you have become a victim to this common social media-influenced occurrence.

We will attempt to solve your situation using the law on defamation specifically, libel, and the Data Protection Act,2012.

If you decide to take court action against the person who posted and captioned your picture, you will be the plaintiff whilst the wrongdoer would be the defendant.

Let’s first look at the situation from a defamation perspective. What then is a defamatory statement?

According to Lord Atkin in the case of Sim v Stretch, a defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society.

Contemporary defamation is divided into the torts of slander and libel. The main difference between the torts of libel and slander is that libel is a defamatory statement in permanent form, such as writing, films and even wax images as in the interesting case of Monson v Tussauds Ltd. In that case,in their exhibitions of wax figures, the defendants placed the effigy of the plaintiff in the “chamber of horrors” which contained models of many murderers and lawbreakers. The court held that the matter might be defamatory. Simply put, if the information is written, permanent and visible to the eye, it amounts to libel.

Slander on the other hand is a defamatory statement in a transient form usually conveyed by spoken words.

As stated by Professor Kumado in ‘Introduction to the Law of Torts in Ghana’, libel is actionable per se meaning damage to the plaintiff does not have to be proved for the action to succeed. On the other hand, damage must be proved for slander, except in four instances: where there is an allegation that the plaintiff has committed an imprisonable offence; where there is an imputation that the plaintiff has a contagious disease, such as venereal disease, leprosy or plague; where there is an imputation that a woman has committed adultery or behaved in another ‘unchaste’ manner; or where there is an imputation that the plaintiff is unfit to carry on his trade, profession or calling.

Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort. In Ghana, the offence of criminal libel which could previously be found in section 112 of the Criminal Code of Ghana, 1960 (Act 29), was subsequently repealed by Parliament.

Looking at the explanation of a defamatory statement given by Lord Atkin, the captioning and circulating of your picture by the wrongdoer could be counted as defamatory depending on the reaction of people to the post and the effect that would have on you. Although you did not give a detailed account of the effect of the post, I was able to gather that it did create an unwelcoming impression on your colleagues at work and affected their impression of you. When analysed, there is a good probability that the post of you captioned ‘RIP dear’ would be considered a defamatory statement. If so, then based on the classifications of libel and slander, since the statement was written and the photo was permanently posted online, it would fall under the category of the tort of libel if all the necessary elements of defamation are proved.

Whether slander or libel, the basic elements to be proved are the same. What then are the elements of defamation?

To establish defamation, a defamatory statement must be made, the statement must have had a negative impact, the statement must refer to an identifiable legal person, the statement must have been published and there must be no lawful justification or other statutory defence.

Therefore, you, as the plaintiff, must prove, first and foremost, that the statement was defamatory. In the Ghanaian case of Quarm v Sally, the plaintiff was a teacher. He was also a divisional chief, the district chairman of the Ghana National Association of Teachers and the Ghana Private Road Transport Union. He was attacked in his house by a section of the youth and was stripped naked and paraded in town. The defendant took pictures of the plaintiff which he developed and sold them at the market to the general public. In the picture, the plaintiff was naked with a panty around his neck, the hand of someone standing behind him holding his penis and scrotum and two other hands holding and stretching his right and left hands in a crucifixion position. The plaintiff sued for defamation. The court found that as a result of the picture and the resultant ridicule he was transferred to another place to teach; he had withdrawn from several bodies on which he was serving and lost several social amenities and activities he used to enjoy. It was held that since the defendant had taken the picture, a permanent record of what had happened to plaintiff on that day without the consent of the plaintiff and the picture was a very distasteful and abominable publication which would ridicule any sane, decent and respectable person and it had been intended to lower the plaintiff in the estimation of right-thinking members of society because of its offensive nature, it would constitute defamation.

As has already been discussed above, depending on the extent of the effect of the post on your life and reputation, it might be counted as defamatory.

Moreover, you must also prove that the defamatory statement referred to you in particular. In the words of Lord Atkin “To be actionable, the defamatory words must be understood to be published of and concerning the plaintiff”. It is clear from the fact that a photo of yours was posted along with words ‘RIP dear’ could be counted as defamatory as the post referred directly to you.

Finally, you must prove that the defamatory statement was published or communicated to a third party. According to Professor Kofi Kumado, publication means making known the defamatory matter, after it has been written or spoken, to some person other than the person about whom it is written or said. In your situation, we observe clearly that there was posting and circulation on social media which means that numerous people got access to the post thus satisfying the publication factor required to prove defamation.

As we have already said, to successfully establish defamation, there has to be no lawful justification for the defendant’s act. What then are the defences available to the defendant for defamation?

The principal defences that can be raised in a defamation claim are: truth where the defendant can prove the words are true; qualified privilege which is a partial defence where the defendant can prove that the publication was in the public interest; absolute privilege which is a complete defence applying to statements made in certain situations such as in Parliament, between solicitor and client and statements to the police in a criminal investigation; fair comment which refer to honest opinions or criticisms on matters of public interest.

In addition, some writers state the following defences: unintentional defamation where the defendant did not intend the material published to be defamatory to the plaintiff; and consent because a person who consents to the publication of a defamatory matter cannot succeed in an action for defamation.

Because of social media, it’s now much simpler to make a defamatory statement. Social media platforms like Twitter and Facebook allow you to instantly “publish” a statement that can reach thousands of people. However, regardless of whether it’s a tweet or a Facebook or WhatsApp status update, online defamation is treated the same way as traditional defamation, meaning that a person can be sued for any defamatory statements posted online.

Thus, if you are able to successfully prove that the post by the wrongdoer negatively affected your reputation within Lord Atkin’s explanation of a ‘defamatory’ statement by establishing all the required elements of defamation, specifically libel, as well as the fact that the wrongdoer has no justifiable excuse for publication of the defamatory statement, you could succeed in an action on defamation.

Furthermore, you could also attempt to rely on the Data Protection Act, 2012 (hereby referred to as ‘the Act’) in order to succeed in court against the person who posted and captioned your picture.

According to section 17 of the Act, a person who processes data shall take into account the privacy of the individual by applying the following principles: accountability, lawfulness of processing, specification of purpose, compatibility of further processing with purpose of collection, quality of information, openness, data security safeguards, and data subject participation. From everything you have explained it does not seem as though the wrongdoer took into account the principles required under section 17 of the Act.

Section 18 of the Act goes on to state that a person who processes personal data shall ensure that the personal data is processed without infringing the privacy rights of the data subject in a lawful and reasonable manner. It does not appear from your letter that the wrongdoer took any steps to ensure that he did not infringe your privacy rights.

Section 19 of the Act also states that personal data may only be processed if the purpose for which it is to be processed, is necessary, relevant and not excessive. The question here is, is it necessary or relevant to post the picture of a stranger online and caption it with a statement which after investigations turns out to be false? I believe most would consider it to be unnecessary to post and caption strangers’ pictures online.

According to section 20(1) of the Act, a person shall not process personal data without the prior consent of the data subject unless the purpose for which the personal data is processed is necessary for the purpose of a contract to which the data subject is a party; is authorised or required by law; is required to protect a legitimate interest of the data subject; is necessary for the proper performance of a statutory duty; or is necessary to pursue the legitimate interest of the data controller or a third party to whom the data is supplied. From the information you have provided, the wrongdoer did not seek your nor any of your family members’ (in the event that he actually believed you are deceased) consent before publishing your picture with the caption ’RIP dear’. Section 20 (2) and (3) of the Act give you the right to object to the processing of your personal data such as photos, and requires the data processor to stop the processing of personal data once you make an objection.

Although not defined in the act, according to Brittanica.com, any use of computers to perform defined operations on data can be included under data processing. Therefore, based on this, you would become a data subject whose personal data, in this case being your photo attached to a caption, was processed by a person who probably did not take into account the laws under sections 17 to 20, in particular, of the Act.

You can thus make a complaint to the Data Protection Commission which is established under section 1 of the Act with its object as stated in section 2 of the Act being to protect the privacy of the individual and personal data by regulating the processing of personal information, and to provide the process to obtain, hold, use or disclose personal information.

Despite the fact that the circulated post caused a great inconvenience in your daily life, I would like you to consider the fact that it is possible that the wrongdoer meant the post to be merely a joke which unintentionally escalated. Although this does not mean you should not attempt to take court action, you might perhaps try to settle the matter amicably if you contact the stranger. It might be that a public post from him apologizing and clarifying that the ‘RIP dear’ status was a mistake and a misunderstanding, could help alleviate all the stress you have experienced in the meantime.

Moreover, your situation is not an isolated one. An interesting case, according to Boksburg Advertiser, happened in South Africa in 2016 where a very much alive Deidré Warren, after visiting her bank, discovered that she had been declared dead. In this instance, even a death certificate was issued in her name which meant that she ceased to exist as a person in South Africa.

Many celebrities and public figures, including Celine Dion and Hilary Clinton, have also been victims of false publications on social media about their deaths. In 2016, a mural in Australia read “In loving memory,” near a detailed illustration of singer Taylor Swift. The creator of the mural reportedly received an email from Swift’s attorneys asking that the artwork be taken down. However, before the artist could take any action, the artwork was altered to refer to a 17-year-old gorilla that grabbed a 3-year-old boy who climbed into an ape enclosure at a zoo.

I hope you get all your affairs in order and I wish you all the best in any action you decide to take.

Cheers,

April.