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By Ashton Naidoo and Candice Murray

Social media has become an integral part of our daily lives, allowing us to share our thoughts, opinions, and experiences with others. As a result, commenting on someone’s actions or behaviors has become incredibly accessible and frankly, commonplace in modern society.

However, the ease and speed of social media can also lead to hasty, thoughtless or even harmful posts. In South Africa, there are laws and regulations that govern what we can and cannot post on social media. The potential legal implications can be intricate and extend far beyond the immediate moment of hitting repost. Expressing your opinion online is like navigating a digital minefield and one must therefore tread carefully.

The South African Constitution

The South African Constitution guarantees freedom of expression, which includes the right to communicate freely using social media. However, this freedom is not unlimited and must be balanced against other rights and interests, such as the right to privacy, human dignity, and reputation. Some statements could potentially infringe upon the Constitutional rights of the offended party. This might result in the person making those statements being charged with a criminal offense known as crimen injuria, which involves deliberately causing harm to someone’s dignity.

The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and Social Media

PEPUDA prohibits unfair discrimination based on various grounds, including race, gender, religion, and sexual orientation. Social media posts that contain hate speech or discriminatory content can be considered a violation of PEPUDA and can result in legal action.

Defamation and Social Media

Defamation occurs when a person publishes a statement that harms the reputation of another person. Social media posts that contain false and damaging information about a person can be considered defamatory and can result in legal action.

In the landmark case of Heroldt v Willis, the defendant, Willis, made false and damaging statements on Heroldt’s Facebook page, stating that he was an unfit parent due to alleged substance abuse. Willis tried to argue that her right to freedom of expression protected her actions which forced the Court to engage in a delicate balancing act between her right to freedom of expression and Heroldt’s entitlement to his personal dignity. After a thorough consideration of all pertinent details, the Court ruled that, in this instance, the value of safeguarding Heroldt’s dignity held more weight than upholding Willis’ freedom of expression. As a result, the court ordered Willis to remove the defamatory content and granted compensatory damages.

This verdict drew attention to the implications of social media and the potential repercussions when individuals exploit it as a means to defame others, thus raising awareness about responsible online behavior.

In the current digital age, liability for defamation isn’t only confined to the original author of a statement. Your mere involvement in sharing or endorsing defamatory content on social media, even if you’re not the original poster, can potentially make you legally accountable.

Being tagged in a social media post, retweeting a defamatory message, sharing it, or expressing approval through likes can expose you to liability. This expanded scope of liability was exemplified in the case of Isparta v Richter, where the ex-husband of the aggrieved party was deemed jointly and severally liable for his new wife’s defamatory comments about his ex-wife on social media. Despite not being the direct author of the content, the ex-husband’s tagged involvement was seen as a form of endorsement.

The Court ruled that because the ex-husband was aware of the defamatory post, deliberately chose not to disassociate himself from it, and remained silent, he must be held equally accountable for the defamation.

This case highlights the importance of not only being cautious about what you personally post but also being mindful of what you engage with and share on social media. Even indirect involvement with defamatory content can lead to legal consequences.

The Electronic Communications and Transactions Act (ECTA) and Social Media

The ECTA governs electronic communications and transactions, including social media. It provides that a person who publishes information on social media is responsible for ensuring that the information is accurate, not misleading, and does not infringe on the rights of others.

Section 86 of the ECTA provides that an internet service provider (ISP) is not liable for damages arising from information posted on their platform by a user. However, this protection does not apply if the ISP knows or should have known that the information posted is illegal or infringes the rights of others.

In conclusion, social media posts in South Africa are subject to various laws and regulations, including PEPUDA, defamation laws, and the ECTA. Social media users can be held personally liable for posts that are discriminatory, defamatory, or infringe on the rights of others. It is important for social media users to exercise caution and responsibility when posting on social media, as the consequences of thoughtless or harmful posts can be severe. It is also important for ISPs to monitor their platforms and remove illegal or infringing content to avoid liability.

If you believe that you may have been defamed or are accused of defamation, seek legal advice as to the remedies you may have based on the facts of your matter.


Photo by Marvin Meyer on Unsplash