Although the legal position regarding legal liability for posts on WhatsApp has been pretty set since 2022, we do often get enquiries about the legal consequences of posts that are made or shared on WhatsApp, and especially about the legal liability of group administrators.
South Africans have been warned repeatedly over the years that they are at the risk of legal action if they post or share inciteful or hateful content on social media like WhatsApp and Facebook. The warning became a harsh reality since the Cybercrimes Act came into force.
The Cybercrimes Act defines three types of content that can be criminalised. These are messages that:
· Incite damage to property or violence,
· Threaten people with damage to property or violence, and
· Unlawfully contain an intimate image.
The Cybercrimes Act also defines the crimes of cyber fraud, forgery, extortion, and theft of incorporeal property, all of which can be committed on social media (although the Act doesn’t limit it to social media). It also goes without saying that messages that amounts to defamation and crimen injuria can also lead to civil and criminal liability.
Someone convicted under the Cybercrimes Act is liable to a fine or imprisonment for up to fifteen years or both.
In 2022 WhatsApp enabled members to leave a WhatsApp group without a notification that they have left to avoid the awkwardness of having to explain to others why they left a particular group. Members were also allowed to delete their messages after two days (compared to the previous situation which only allowed them to delete a message within one hour); and being visible online only to a specific group of people.
A major update was the ability for WhatsApp group administrators to delete messages from a group. This update placed a huge responsibility on the group administrators, and they need to be mindful of the content allowed to be shared on their WhatsApp groups. Especially posts that amount to threats and bullying in a group should be deleted without hesitation by the group administrators in order to avoid the consequences of the Cybercrimes Act.
It is suggested that, when creating a group, a disclaimer, guidelines, and the purpose of the group be added. Unfortunately, administrators cannot predict what is coming and a disclaimer might not deny enough or reach far enough. In determining their legal liability, it will be considered whether the administrator was able to stop the illegal content from being published and didn’t; and whether the administrator could or did disassociate themselves from the content published.
As mentioned above, a member can incur legal liability for sharing a post as it is treated as if it were published in other printed media, such as a newspaper. There is also a principle is South African called the ‘chain of publication.’ This means that where you have shared a post, you are responsible for it.
It does not matter whether you are a member or and administrator – protest immediately against any post that may get you in trouble and clearly disassociate yourself from it. If you are an administrator, delete it and remove the author of the post from the group.
A last thought – beware of unintentionally concluding an agreement on WhatsApp. If you accept an offer and the essential elements of an agreement are present in the offer, or in your acceptance thereof, the agreement will be legal and binding!
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