Most individuals’ main source of obtaining news and information are through the internet and social media platforms, which speaks to the reliance and reach these platforms have. They have become an extremely powerful tool, at the fingertips of individuals and almost everyone who uses these platforms for creating content, even in a personal capacity.

The movement towards digital forms of information and entertainment is progressing at a pace so rapid that development and transformation of legislation cannot always keep up. This creates somewhat of a grey area with regards to what can and cannot be published on these digital platforms such as Facebook, Instagram, Twitter, YouTube and other similar digital platforms (“social media”).

Recent developments saw the Cybercrimes Act come to light. However, it does not directly deal with instances where someone posts negative or humiliating comments or information of someone else on social media (commonly known as defamation).  Fortunately, the Constitution and court judgments throughout the years give some guidance on what is allowed to be done on social media or not.

Freedom of expression versus social media

Section 16 of the Constitution provides everyone with the right freedom of expression. This right is not an absolute right and there are limitations on what one is allowed to say, for example, in respect of hate speech or to provoke violence. The right to freedom of expression can also be limited in instances where what is said infringes the human rights of others, such as the right to privacy and dignity.   

The right to freedom of expression applies to everyone equally including social media content creators, even those who use social media in their personal lives. Their rights, like everyone else’s are also limited and they do not have the freedom to say whatever they want to. This means that when people post something on social media, they also have a responsibility to ensure that they do not infringe the rights of other.

Making use of social media creates situations where the boundary lines between socially, professional and legally acceptable and unacceptable behavior becomes blurred. A person should at all times be cautious of the effects of using social media, for example:

  • A post made on social media is public, even if a person meant for the post to be private. For example, Emily intended her post on to be seen by only her family and friends, however, through John sharing Emily’s post, her post can now also be seen by John’s family and friends. This indicates how a post made on social media has the potential of reaching thousands and millions of people.
  • The true meaning of a person’s post on social media may be lost through the interpretation by the public, for example, a post meant to be interpreted as ironic could be interpreted by the public as supporting racism.

Being cautious about what is posted on social media does not stop at just making a post. Liking, commenting or sharing a post on social media without being cautious of the content, may have severe consequences, such as a person being: sued for defamation; charged for hate speech; dismissed by his/her employer; or vulnerable to cyber bullying or identity theft.

Freedom of expression versus the right to privacy

A recent matter in the Supreme Court of Appeal (Smuts and Another v Botha (887 of 2020) (2022) ZASCA 3), related to whether the publication of personal information in certain instances was protected by the right to freedom of expression.

The matter concerned a photo, taken by a cyclist, of a dead porcupine and baboon in cages that appeared to have died from dehydration. The cyclist sent the photographs to a wildlife conservationist who then posted the images on Facebook, including the name of the owner of the farm, his profession and his address. The comments on the post condemned the owner of the farm and the owner applied for an interdict against the conservationist to remove of the post.

The Supreme Court of Appeal found that the interdict should not be granted as it would stifle debate and censor the activists’ right to distribute information to the public. It was further held that the post publicised the truth about the farmer’s actions and was of public interest and, therefore, did not violate his right to privacy.

What can be taken away from this judgement is that the protection of personal information is a fundamental right and it must be balanced against competing rights of freedom of expression.

The surrounding circumstances of each matter will determine how a balance is achieved. Just because the post was allowed in this case, does not mean that the post will be allowed in another case. Always be cautious and avoid sharing personal information of someone else on social media.

Freedom of expression and dignity

In another recent matter, the Western Cape High Court (Booysen v Major (5043/2021) considered the right of freedom of expression and defamation. A victim of rape outed her alleged perpetrator on social media. He applied for an interdict 5 years later. The High Court dismissed his application and said that in this specific instance, the man outed by the victim as her rapist five years ago had no legal right to silence her. However, the reason for this ruling is very specific to the facts of the matter and cannot be applied to all instances.

How can the pitfalls of using social media be prevented?

Almost everyone uses social media on a daily basis and the above cases indicates that something that might seem innocent, can be considered to infringe on another’s rights of privacy and dignity. This can lead to sever consequences and legal actions against the person who made the post, or even commented on the post. The following should be considered by any type of content creator before making a post:

  • Do not disclose any personal information on social media.
  • Monitor privacy setting on social media regularly.
  • Keep all posts legal, ethical, respectful and mindful.
  • Do not use social media as a platform to provoke other people.
  • Only make accurate, true and non-confidential posts.
  • Do not make, like/react, comment on or share any defamatory post about another person.
  • Take steps to be untagged/disassociated from any defamatory post about another person.

In light of the above, it is clear that there are a lot of factors that must be considered when dealing with social media. The bottom line is that any type of content creator on social media cannot say or post what they want. It is important to remember that online conduct is subject to the same laws as offline conduct and hate speech, incitement to commit violence and defamation is not protected.

Social media platforms have provided new and innovative ways of giving South African’s a voice. In the words of Judge Chetty in Braithwaite v McKenzie 2015 (1) SA 270 (KZP):

“…in today’s world the most effective, efficient and immediate way of conveying one’s ideas and thoughts is via the internet”.

However, it is important to remember that the right to freedom of expression is not unfettered and Judge Chetty further cautioned that:

“… the internet reaches out to millions of people instantaneously. The possibility of defamatory postings on the internet would therefore pose a significant risk to reputational integrity of individuals.”

 

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