Meta-owned WhatsApp is one of the most popular social media apps in South Africa with more than 23 million people using the app on a regular basis.
It is a fast, simple, and convenient way for family, friends and business colleagues to chat, create group texts, share photos and videos, send and receive documents, and engage in private, secure conversations at any time, day or night. And since it data-based, the cost of local and international calls are negligible.
Due to the ease of creating new groups, many people have created several groups of which they are the person with administrative control that can add or remove people – the so-called group admin. Unfortunately most of these group admins are unaware of the important changes and growing responsibilities that the new WhatsApp update of September 1 brought about.
As a result of these changes uninformed South African group admins could easily in future encounter legal problems.
Until now, only individual users who sent a message were able to delete it and then only within an hour. The September 1 changes to WhatsApp assigned new powers to group admins and gave them much more control over the content being shared in groups.
The stronger moderation tools include that group admins can now via a “long press” delete any message that was sent by a group member, which will then be deleted on all devices of group members. The time limit of these deletions has also been extended from one hour to a couple of days.
Although these improved moderation tools are excellent to manage objectionable and illegal content, it is “a game changer” according to the social media law expert Emma Sadleir Berkowitz. The recent changes entail that group admins, because of their new moderating powers, now become legally responsible for all content that appears on the specific group.
If any person in a group sends content containing hate speech, threats, incitement, or any illegal content and it is not deleted by the group admin, the group admin can be held liable for the content and may face legal consequences.
The Film and Publications Amendment Act (FPAA) (Act 11 of 2019) was proclaimed by the President of South Africa, commenced on 1 March, 2022 and regulates online films, games and publications. Interestingly, the FPAA considers everyone a distributor once they post content on online mediums.
The Act creates two distinct categories of distributors, namely a non-commercial online distributor and a commercial online distributor. Users of social media are non-commercial distributors if they are, for example, posting content on social media and they do not generate any form of income from it.
Among other things, the FPAA criminalises all forms of image-based violence and revenge pornography such as the distribution of private sexual photographs and films, through any medium including the internet and social media, without the consent of the individual appearing in such photographs and films and if the distribution is made with the intention of causing that individual harm.
Also unknown to many people, the Cybercrimes Act (Act 19 of 2020) that commenced on December 1, 2021, criminalises threats to people, categories of people and property on social media.
This means that WhatsApp group admins will need to be careful with regard to the content allowed on the group chat and will also have to guard against threats and bullying in the group.
If a person sends a message, such as a WhatsApp, Skype, Tweet, or email that is harmful or could incite others to cause damage to property or hurt people, he or she could be fined or imprisoned for three years. Users will have to be very careful about what they write in an email, private messages and on social media.
Many people are aware that the posting of harmful messages on social media can lead to legal problems, but unfortunately most people are unaware that in some cases the mere sharing, forwarding, liking or failing to call out a harmful post could also lead to legal issues.
In South African law there is an important principle known as the “chain of the publication,” which entails that if a person is involved in sharing something, he or she is responsible for it.
For instance if a person places a picture on Instagram or a video on YouTube and somebody else makes a racist remark underneath the picture or video, the person that posted the picture or video is legally responsible.
The reason is that the person placing the picture or video, owns the post and thus has the ability to delete it.
Similarly, if a person “likes” something, he or she is actively associating with the content and thus also in the chain of publication and legally responsible.
And unlike popular believe, general disclaimers such as “retweets are not endorsements” or “I tweet in my personal capacity” do not indemnify people from potential legal action.
Although it is important to clearly state the purpose of a group, provide guidelines and add disclaimers when a group is created, it is not enough, since group admins remain liable for the content.
The important legal question is if the admin was able to stop the illegal or offensive content, and whether the admin could have disassociated themselves from the content published and called it out in the group.
According to Sadleir, people that belong to a WhatsApp group have two options if a group member posts indefensible, defamatory or objectionable content.
One option is to clearly state that you disapprove of the particular content. The other option is to leave the group, which now with the new changes can be done without the awkward notification that you have left. If people do not follow one of these options, a legal argument could be made that they are in the chain of publication.
Group admins have an even greater responsibility with the new WhatsApp changes and improved moderating power, since they must actively delete such content or face possible legal consequences. They ultimately remain liable for all content, whether they posted it or not.
All users of social media will therefore have to be much more careful before they share a picture or a joke, and even more careful when they resend such content, or they may encounter legal problems in future. Group admins will have to ensure that the group’s posting is legally clean and relevant to the group they administer.
Perhaps only the lawyers can smile, since with the vague definitions in the Cybercrime Act, they could possibly gain many new private clients with legal problems or businesses that need assistance with policies and procedures to ensure compliance with the new legal obligations. Not that I believe for one moment that we have enough skilled people to enforce these complicated and often vague laws.
Professor Louis C H Fourie is an Extraordinary Professor at the University of the Western Cape.
BUSINESS REPORT