The case every South African should know before sending a message on WhatsApp or social media

The issue of posting controversial content on social media is not new but South Africans continue to publish potentially harmful content on a frequent basis, says law firm Cliffe Dekker Hofmeyr.

The firm noted that a good place to start in understanding defamation is through legal authorities such as the Constitutional Court.

“The Constitutional Court in Le Roux v Dey confirmed that the law of defamation is designed to compensate a victim for any publication that injures the victim in their good name and reputation.

“The court set out the elements of defamation succinctly as: the wrongful and intentional publication of a defamatory statement concerning the wronged party,” it said.

Cliffe Dekker Hofmeyr noted that before the internet, what constituted “publication” was limited generally to hard copy print.

But with the advent and evolution of electronic communication, the internet and social media, examples meeting the requirement of “publication”, as set out in the Le Roux case, will self-evidently include email, but also:

  • Posts on any social media platforms, Instagram; Facebook; Twitter; LinkedIn; and TikTok included;
  • WhatsApp messages;
  • Comments on online news articles; and
  • Any other publicly accessible medium.

“What is even more important to understand is that South African law considers repeating or sharing defamatory content as sufficient to constitute ‘publication’ and, thus, defamation in its own right, even if the repeater or sharer was not the author of the original defamatory post.

“So just by clicking share, you could be perpetuating the defamation, exposing yourself to a damages claim for defamation or to potential dismissal by your employer.”

Cliffe Dekker Hofmeyr noted that disciplinary proceedings against employees in relation to their social media activity and online conduct is also now well established in our law.

“With 1.62 billion users visiting Facebook each day – and approximately 145 million daily active users on Twitter, the chances of a defamatory post going undetected are slim – in fact, you have more chance of the opposite result – going viral,” it said.

“The internet and social media are immensely powerful but so dangerous for the innocent and unwary.

“Many children have access to electronic devices and social media platforms, and it is so important that children are aware of the grave consequences of irresponsible conduct, consequences that might only be manifest years down the line. Just like an elephant, the internet never forgets.

“We should have no sympathy for bigots and online ‘trolls’ – they should get what’s coming to them. But children, young adults and the uninitiated need to be made aware that, no matter how innocently they publish or share something online, that publication could jeopardise their future.”

Commentary by Timothy Smit (Director) and Elizabeth Sonnekus (Associate) at law firm Cliffe Dekker Hofmeyr. 

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The case every South African should know before sending a message on WhatsApp or social media