ex Africa semper aliquid novi

Its rather strange that the toilet.wen.ru phenomenon has been largely ignored by South African tech and social networking media. A mobi site that reaches a loxion youth, a highly sought after and difficult to reach demographic, linked to celebrity gossip and allegations of defamation is unique in South Africa’s media history.

Instead its The Sowetan which has surfaced it, first when it reported allegations that a teenager from Escort who had been defamed on the site had committed suicide, and then in a story about Linda Sibaya, a DJ on Ukhozi FM publicly denying claims made on the site.

Its easy to understand an aversion to the phenomenon; its edgy use of mobile technology is offset by its deliberately sordidness. Warning: prolonged exposure to the mobile site is likely to cause you to want to wash your hands (and your eyeballs) repeatedly.

The site: toilet.wen.ru appears to be aimed at 2.5 and 3G phone enabled teens and twenty somethings, as a text enable equivalent of a public toilet door, with graffiti, gossip, and links to porn. The domain .ru signifies that the domain is registered in Russia but the invitation to the chat rooms “Feel free to kak as much as u want” should dispel any illusions that the site is intended for Russians.
Chat rooms include listings for provinces such as Gauteng and within provinces for loxions such as Orange Farm. User’s chat in a semiotic melange of txtk, tsotsitaal and leetspeak. Some users convert this multi-lingual code into a type of reverse Volpuk; using Cyrillic characters to denote tsotsitaal,  as an ironic reference to the .ru domain and to signal that they are more sophisticated than other users. Those other users being too unsophisticated to use Babelfish or Google Translate, the bar is none too high. Public but pseudonymous chat includes gossip, requests for information about the relationship status of a particular person, and plenty of invitations to call or text other users.

The sites top down architecture includes chat rooms for schools, colleges and even churches bizarrely juxtaposed with links to porn. Driving traffic to porn and “sex chat” appears to be the underlying business model for the site.

The site is sufficiently popular to have at least one competitor. The original site has tried to counter the threat of rivals with the warning “Please do not visit any other wapsite posted in our chatrooms,or ur phone wil get a virus n all ur airtym will be chewed up instantly n ur phone screen will go blank.So please only visit Www.Toilet.Wen.Ru it is the safest site for ur phne n pc”.

Defamation:
According to the Sowetan users on the site defamed Sibaya claiming that he had an affair with a colleague. The situation raises important questions for online speech. If the allegations in th Sowetan are correct, then what recourse would someone living in South Africa have against a site purportedly based in Russia for defamation?

If it were established that speech on such the is defamatory on the face of it, two questions would arise; who is liable and can the court exercise jurisdiction over them? If a statement is defamatory then the author of the statement is liable. However on sites like this one, while some users disclose their names and cellphone numbers, others do not. There would thus be a practical difficulty of finding out the identity of the pseudonymous defamer. A person complaining of defamation by a pseudonymous user might want to try to obtain such details from the person operating the site. He might also want to sue the site operator for assisting or repeating the defamation. Either of these would give rise to the second question; could a South African court exercise jurisdiction over the site?

Ordinarily courts are loath to impose liability for defamation on intermediaries, and also reluctant to make intermediaries disclose the identities of their users. However in this kind of case it seems that a court would be likely find that the site positively courts liability. The list chat rooms for provinces bears the legend:

“BE FREE TO SAY WATEVER U LYK.NO ONE WILL EVER TRACE UR NUMBER OR GET UR PERSONAL DETAILS”.

A court would ordinarily regard a website that enables speech and discourages, even though it does not police or prevent, defamatory speech, as carrying out an important social function, which should not be too easily burdened. Such a website enables the best answer to bad speech which is more speech. A court is likely to look rather differently at a site if it regards it as setting itself up as a haven for defamation. If a court were to conclude that a website operator effectively invited users to make defamatory comments as part of its business model, then a court would be far more likely to impose liability, and also to order the site operators to disclose the identity of certain users. To do so it would have to exercise jurisdiction over the site.

To decide whether it should exercise jurisdiction over a site a court would ask itself whether it is the appropriate venue to decide the legal question, and whether it could make its decision effective. Where a site is registered in Russia a South African court is not able to order the domain name registrar to disclose information on the site operator, nor to order that the domain be close down. If website operates a bank account in South Africa however a court could order that the account be attached to enable the court to enforce any judgement that it might make about the website.

Would a South African court be the appropriate venue to decide the question of defamation. One test which Australian courts have used, and which has been roundly criticized is to ask whether the defamatory comments are can be read in the jurisdiction where the complainant is based (or decides to make a claim). If they are then “publication” has taken place in that jurisdiction, and the court can decide defamation. The results are obviously absurd, every time that every person who makes something available on the Internet does so, she would be subject to 149+ competing and conflicting rules about whether what she made available was defamatory.

There is a far better rule which would yield far more appropriate results. A court could ask within which community a particular communication is made. If that community is within the jurisdiction of the court then the court should exercise jurisdiction. This test is symmetrical with another test which the court must apply in deciding whether a statement is defamatory at all. In deciding whether a statement is defamatory in South African law a court must consider within which community a particular communication is made, and whether the statement would tender to lower the person about whom the statement is made in the eyes of the right thinking members of that community. How would this test work in respect of the allegations in the Sowetan?

Although the site is registered in Russia, the use of South African province and place names, colleges and universities and churches leads easily to the conclusion that the intended recipients of any communication is in South Africa. Indeed it may be possible to locate an even more specific community as intended recipients of a communication as those in a particular town or church or on a particular campus. A South African court would thus be entitled to decide a defamation claim for such site, provided it has a means of enforcing its judgment. A South African court could do so without invoking the assured Australian precedent.