Whether you “Like” it or not, social media has become a powerful presence in our everyday lives. With hundreds of thousands of Facebook status updates, tweets and overly filtered Instagram images posted every second of the day, you really have to think carefully about what we share. Sure, there’s not much to it if you are sharing that viral video of a cat dressed as a pirate, or if you are updating your friends and followers on whether or not you got your gym workout in for the day, for instance. But, it is important to know that a social media platform isn’t necessarily the place for you to say and do as you please; in fact, there could be some serious legal consequences for certain posts, uploads, and comments.
There are limits to free speech in South Africa. As the Constitution reflects: “The right does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.
Can My Social Media Post Get Me in Trouble?
To put it simply: yes, if it is defamatory in nature, you could land up in court facing a lawsuit. Defamation can be seen as any wrongful, intentional publication of words or behaviour relating to another person that injures or demeans their status, good name, character or reputation.
Defamation Case in Civil Court
South Africa’s landmark online defamation case occurred in 2013 (Heroldt v Wills), which saw Heroldt seeking an interdict against Wills for posting a defamatory Facebook message about him. The gist of Wills’ post was the Heroldt was an unfit parent due to his alleged substance abuse. The court maintained that the assessment for determining whether the information posted has a defamatory meaning is whether a reasonable person, of ordinary intelligence, might reasonably understand the words concerned to convey a meaning that is defamatory. There was also no evidence to support Wills’ accusations. Needless to say, the judge ruled in favour of Heroldt, and Wills had to remove the post from Facebook and pay hefty legal fees.
Hate Speech Charges in the Equality Court
Of course, any comments that violate someone’s Constitutional rights could land you in some very hot water. Case in point, former Durban realtor Penny Sparrow, whose unacceptable Facebook status likened Black beach-goers to “monkeys”. After the post went viral and there was widespread outrage in the country, The Umzinto Equality Court eventually fined Sparrow R150 000 for her racist comment. Sparrow’s remarks were classified as hate speech, which can be seen as any speech, gesture or conduct or writing that attacks a person or group on attributes such as race, religion, ethnic origin, national origin, sex, disability, sexual orientation, or gender identity.
Possible Criminal Charges in Criminal Court
What’s more, you could face criminal charges as well. In early 2018, celebrity couple Basetsana and Romeo Kumalo filed crimen injuria (a wilful injury to someone’s dignity, caused by the use of obscene or racially offensive language or gestures) charges against individuals who were spreading rumours on social media regarding a salacious sex tape allegedly featuring the couple and another famous local personality.
Social Media Tip: Think about what you post! If what you say online is not factual and can’t be substantiated by proof, don’t post it. Also, don’t create posts that will provoke anyone to cause hard to others because of their race, gender, religion, sexual orientation etc.
What If I am Tagged in a Post that Could Be Defamatory?
You don’t necessarily have to be the person who wrote a potentially abusive post to face the repercussions, just being tagged in a message (you don’t even have to comment!) targeting someone else could still implicate you. In Isparta v Richter and Another 2013, the Richter posted a number of slanderous posts about his ex-wife (on Facebook and tagged his current wife, and the judge awarded the Isparta damages of R40 000, which was payable by BOTH Richter and his new wife. The point is, if you are aware of the fact that you are tagged in a potentially defamatory post, and you make no effort to disassociate yourself from it, you could be held equally liable.
Social Media Tip: Remember, it is always best to keep track of which social media posts you are being tagged in. It’s best to be sure that your profile is not linked to defamatory remarks.
Can I get fired from my job for expressing my views on social media?
Many companies have zero-tolerance policies regarding racist, sexist and homophobic comments because whether you are physically in the office or not, you still represent the company.
The CCMA has heard many cases of employees posting information that sheds a negative light on their employer’s reputation and consequently being fired, or have posted about a company’s internal affairs and being dismissed. In 2011, there was a case involving two employees who wrote defamatory remarks about their boss to each on Facebook, and because their Facebook privacy settings did not restrict access, the comments were considered to be in the public realm, and they were slapped with a defamation lawsuit. In 2018, a SAPS officer was dismissed after posting violent remarks about white South Africans on EFF leader Julius Malema’s Facebook page. The Labour Court held that “there can be no doubt that dismissal was a fair sanction”.
Social Media Tip: Stay updated on your employer’s social media policy. If your company doesn’t have one in place, suggest that it is a good idea to create one and avoid posting anything that could land you in trouble at work.
Are there any Social Media Terms and Conditions I should be aware of?
In terms of the above discussion, the following social media rules are important to take note of:
- You may not bully, intimidate, or harass any user.
- You may not post content that: is hate speech, threatening, or pornographic; incites violence or contains nudity or graphic or gratuitous violence.
- You may not use Facebook to do anything unlawful, misleading, malicious, or discriminatory.
- You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.
- You may not incite or engage in the targeted abuse or harassment of others.
- You are responsible for any activity that occurs under your screen name.
- You must not abuse, harass, threaten, impersonate or intimidate other Instagram users.
- You are solely responsible for your conduct and any data, text, information, screen names, graphics, photos, profiles, audio and video clips, links (“Content”) that you submit, post, and display on the Instagram service. Depending on the severity of the case, you might just receive a warning and be asked to remove the post, or if a post is deemed offensive, your profile could be deleted.
At the end of the day, it is imperative that you are completely aware of what you post and make public on social media as it can have far-reaching consequences.
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