Should you be held accountable for what you post on social media platforms?

Social media is an interactive platform that facilitates the creation and sharing of information, it has provided a space in which people are able to exercise their right to freedom of expression on a public platform.

Although many people attest to the positive impact of social media on their lives, there are others who fall victim to the negative effects of social media such as cyber bullying and hate speech.

It is for this apparent reason that legislation such as the  Cybercrimes Act 19 of 2020, Protection of Personal Information Act 4 of 2013, the Protection from Harassment Act 17 of 2011, and the Promotion of Equality and the Prevention of Unfair Discrimination Act 4 of 2000  have become an important source in regulating parts of social media that may pose harm to society.

The right to freedom of expression is provided for in terms of Section 16 of our Constitution, it provides our citizens with the liberty to express themselves without the fear of sanction. However while it is important that freedom of expression be recognized, there are certain limitations to what can be perceived as genuine expression of one’s opinion and those communications which constitute hate speech. 

Section 10(1) of the Equality Act provides for the prohibition against hate speech where one advocates, propagates or communicates words against any person that can reasonably be construed to show a clear intention to be hurtful, harmful or to incite harm.

In  Qwelane v South African Human Rights Commission and Another 2020 (2) SA 124 (SCA) the Honourable Court drew a distinction between speech that is perceived to being hurtful from speech that is harmful. When speech is harmful it tends to infringe on the right to dignity and equality of a targeted group, thus causing physical, psychological and emotional harm. The test is an objective one, requiring the reasonable perception of the targeted group.

In terms of Section 10(2) of the Equality Act, groups that are targeted by hate speech are enabled to institute civil litigation against the wrongdoer. This would be based on defamation and can include an interdict directing the wrongdoer to immediately stop such irregular conduct.

In addition, the Cybercrimes Act, expressly includes harassments deriving from electronic communication such as social media. The Act gives authority to both South African police officials and investigators the authority to search, seize or access any resource suspected to have been used for the commission of a cybercrime.

While social media sets a platform to freely voice one’s beliefs and opinions publicly, we need to bear the responsibility that comes with such freedom. The fact that social media is open to the public means that everyone is liable for the communications that they post and where hate speech is used against certain groups an actionable offence is committed.