11 Basics of social media law – part 1

You are a member of the Network Society.

It sounds like something out of The Matrix, right?

But this is not 1999 and you are not Keanu Reeves. You are part of a new wave of human development called the Information Age. It is both exciting and terrifying.

The Network Society describes us all – people who live in the information age. You probably remember learning about the agricultural and industrial ages at some point. In the agricultural age, farming was the main economic activity. The industrial age was all about machines, mass production and making money. The information age is all about the World Wide Web, ideas and gaining knowledge. It entails the online exchange of knowledge on a global scale.

In short?

Everything is digital. We work, play and entertain online. Social media networking sites have become a space where we make and keep friends. Thousands of South Africans have online personas. The statistics speak for themselves.

By December 31, 2017, South Africa had a population of 57 million and 30 million Internet users. This figure has grown by 1184% since the year 2000 and social media penetration is increasing. This is according to www.internetworldstats.com.

There are 16 million Facebook users in the country, of which 14 million access the platform using mobile devices.  Eight million South Africans subscribe to Twitter and 3.8 million to Instagram.  Expressed in percentages of penetration, 49 per cent of South Africa’s population uses WhatsApp, 46 per cent uses Facebook, 45 per cent YouTube, 27 per cent Instagram and 22 per cent Twitter.

We lead our lives online.  Think about it. It is kind of odd, right?

You can speak to somebody without seeing them in person or hearing their voice. You can publish information to millions of people with the click of a button. You can engage in a fiery debate without ever looking your opponent in the eye. It almost feels surreal and otherworldly.

There is the catch: in terms of the law, you are as liable for what you say online as you would be offline. Many South Africans have learnt this lesson the hard way.

Penny Sparrow posted a racist tweet comparing black people to monkeys online in 2016. She was fined by the Equality Court, her reputation ruined and her life  forever changed.

In 2015, Mabel Jansen stated during a Facebook discussion that 99% of criminal cases she heard were about “black fathers, uncles, brothers raping children as young as five”. The former judge was placed on special leave and resigned in 2017.

In 2018, Adam Catzavelos used the k-word in a video that distributed via social media. The video depicted him standing on a beach while describing his surroundings. He then stated that there was “not a f&^Cing K#[email protected] in sight.”

South Africans were horrified. His social media behaviour placed massive strain on his business associates, family and friends. The apology he issued was not well received and he has not returned to the country since.

In 2015 Mcebo Dlamini, former SRC president of Wits University, was removed from that position after making racist comments online.  His supporters were infuriated and alleged that it was an unjustifiable attack on his right to freedom of expression.

Three things are clear. The first is that one social media mistake can ruin your reputation forever. The second is that few people appreciate the effects of an online mistake. Thirdly, many South Africans do not have a clear understanding of their legal position online.

In order to play a game, you must know its rules. In order to stay out of trouble online, you must know the law. In this three part series, Clicklawsummarises legal principles you need to know before logging onto social media sites.

  • BASIC #1: Your right to speak has limits

When Penny Sparrow’s tweet outraged South Africans, radio personality Gareth Cliff tweeted “people really don’t understand free speech at all.”

Whoops. Cue a national debate on the limits of free speech.

What does the Constitution say?

Section 16 deals with the right to freedom of expression.

“16. (1) Everyone has the right to freedom of expression, which includes —

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

This right has limitations:

(2) The right in subsection (1) does not extend to —

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that

constitutes incitement to cause harm

Cliff has since said that he would not have defended Sparrow’s right to freedom of expression in hindsight. Then again – hindsight is 20/20 and online mistakes cannot be erased easily.

LESSON: If you thought freedom of speech was an absolute right you now know that it is not. Act accordingly and you will not have to regret anything you did online.

  • BASIC #2: Realise that you are more powerful than a newspaper or magazine

Two decades ago the acts of mass printing, publishing and distributing contents were limited to the traditional mass media.

If you had the ability to publish a newspaper, what would you use to fill the pages?

Surely you would not gather a bunch of insults, racist slurs, sexist statements and homophobic mantras? That sounds like something a deeply disturbed individual would do.

Today social media users are able to publish to a wider audience than the country’s leading newspapers. Let that sink in.

LESSON: Ask yourself whether you would publish a racist, sexist, homophobic or otherwise hateful comment in a newspaper. Apply this notion to everything you publish online. If you will not want your face and name next to a certain statement in a newspaper, do not make that statement online.

  • BASIC #3: When is rude behaviour  illegal?

Racists, sexists and homophobes are rude. Any person who insults another is rude.

When you misbehave, you look bad. You are a disappointment to whoever tried to raise you into a polite human being. Disappointing your mom is one thing. Ending up behind bars is an entirely different story.

Surprise! Your rude online statements may land you in court and possibly in jail.

Many rude acts are also illegal. Gossip legally translates into defamation. An insult could qualify as crimen injuria. A mean statement about people who are different than you could be hate speech. South Africans who have performed these acts have ended up behind bars and some had to pay heavy fines and apologise.

LESSON: Being rude and acting criminally are often one and the same thing.

Source: Capricorn Review