WhatsApp group admins could be held liable for what’s said on the group
Attorneys Megan Claassens and Sinal Govender at Norton Rose Fulbright have warned that recent international and local rulings extending liability for defamation mean that South African Facebook and Whatsapp users should be extra vigilant of what’s being posted around them online.
The pair cited a 2016 North Gauteng High Court judgement which found that a Facebook user was guilty of defamation because a defamatory post appeared on his Facebook wall and was not removed by him, even though he was not the author of the post.
The court ruled that because he knew of the post and “allowed his name to be coupled” with the author, he was as liable as the author.
Following a similar court decision in India his past month in which a Whatsapp group administrator was arrested for helping share a defamatory photo-shopped image of Prime Minister, Narendra Modi, the pair warn that it is only a matter of time before a similar case reaches South African courts.
“The rise in the use of social media platforms to communicate has resulted in a surge in judgments around the world, which place affirmative obligations on social media users to vet the content that their name attaches to, prior to this content appearing on their social media accounts,” said Claassens and Govender.
“We previously wrote about the South African high court extending liability for defamation to people who have simply been tagged in posts on Facebook. It seems that administrators of social media groups (commonly referred to as ‘admins’) should brace themselves to shoulder similar extended liability for what is posted on a group.”
Claassens and Govender note that numerous parodies of famous global leaders openly shared with ease on the internet. There are arguably even more of these images being circulated on what people may perceive to be private Whatsapp chats.
“Whilst a lot of these images will fall safely into the realms of parody, there are probably also countless other groups where material that is offensive, amounts to hate speech, or criminal conduct, is shared, and in a country you may want to visit one day.”
“The recent order in India should remind WhatsApp group admins that what is posted on private groups can still result in serious repercussions, including being found guilty of defamation or hate speech.”
Likewise the pair noted that if a company appoints a representative to create a Whatsapp group to communicate with a particular team, or the organisation as a whole, should also have the possibility of facing charges on the basis of vicarious liability at the forefront of their concerns.
What should you do?
Until there is certainty on the approach that the courts will take on the liability of Whatsapp admins, some practical advice that companies and individuals can implement immediately include:
- Ask yourself what the consequences of the content shared on your WhatsApp group (be it with family or friends, a home owners association, school committee, or a company) could be if this content was shared publicly. Remember, a claim for defamation only requires publication to one other person (including those in the group).
- Ensure the credibility of the participants of the group. Are all these people personally known to you as the group admin? If a person has subsequently left the organisation or circle to which the group pertains, have you removed them from the group?
- Educate the members of group regularly with regard to what content is permitted to be shared. For example, company groups should be used only to share information that pertains to groups. No cat videos. And certainly no political commentary. A comprehensive corporate social media policy should address this.
- Object to content that may be regarded as defamatory or offensive. This should also be followed by taking immediate steps to get a promise not to repeat the behaviour and, if not, to remove the content and the person sharing such content from the group. In addition, a message should be shared with the group stating that such behaviour is not condoned, and will not be tolerated from other members.
Read: Facebook’s secret internal rules on porn and hate speech leaked
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