These WhatsApp messages can now land you in serious legal trouble in South Africa

 ·3 Nov 2021

The government signed two key pieces of legislation into law in 2021, which will impact social media posts and sharing messages in South Africa, says social media lawyer Emma Sadleir.

Addressing a recent UCT webinar, Sadleir said that the Film and Publications Amendment Act now criminalises all forms of image-based violence and revenge pornography. In addition, the Cybercrimes Act criminalises threats to people, categories of people and property.

While it has long been established that posting harmful messages on social media can lead to legal issues, she noted that in some cases, sharing, forwarding, liking or failing to call out a harmful post could also lead to issues.

Sadleir said this is an important principle in South African law known as the ‘chain of the publication’. This means that if you were involved in sharing something, you are responsible for it, she said.

“If I Instagram a picture, and somebody comments underneath that picture – like, uses a racist slur – because it is my Instagram post, I have the ability to delete it; if I don’t, I am legally responsible for it.

“We have case law to show that if you ‘like’ something, you are in the chain of publication. Liking something is a very active form of association, so be careful about what you’re liking.”

Sadleir added that disclaimers like ‘retweets are not endorsements or ‘I tweet in my personal capacity’ on your social profile would not indemnify you from potential legal action.

“It is a dangerous thing to have in your mind that there is personal capacity and professional capacity. Be careful about these disclaimers. It is certainly not a magic wand that is going to get you out of any trouble that you may get into as a result of what you’re putting on social media.”

Sadleir said that the test for sharing content is quite broad, especially in cases of defamation. This is especially pertinent for WhatsApp groups, she said.

She added that if you are in a WhatsApp group and there’s something indefensible in that group, you effectively have two options:

  • One is to say that you disapprove of it;
  • The other option is to leave the group.

“If you don’t do one of those two things, there is an argument that you are in the chain of publication,” she said.

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