Social Media Law in South Africa

 Article by Christiaan Groenewald - Admitted Attorney of South Africa.

Introduction

Social media platforms like Facebook, Instagram, TikTok and LinkedIn have become such an integral part of our everyday lives that we cannot even imagine a normal day without them. It has changed the way we interact and communicate forever and made virtual socializing a seamless experience that can be enjoyed with a click of a button. 

Despite all the advantages of social media there are indeed a few pitfalls we need to avoid when using these platforms. The best way to do this is to stay informed and to know what the current South African legislation says with regard to specific online behaviors that have been criminalized. As we all know, ignorance of the law is not a defence and being informed is the best way to protect you and your children from ending up on the wrong side of the law.

A country's laws are in fact the tools that give effect to our rights as citizens of a country as enshrined in its constitution. It is ultimately there to protect us and not to punish us, so do not make the mistake of fearing the law. Rather embrace it as the legal compass for your and your children's lives and actions. Take some time to read up on legislation relevant to your industry and you will be amazed at how much you will learn from it. Then use it in your favour!

Position prior to 2020

Prior to 2020, there was no specific legislation in South Africa that regulated the use of social media. We had to look at the common law and the legislation that was in place at that stage, specifically the following Acts:

- The Protection of Personal Information Act 2013,

- The Regulation of Interception of Communications and Provision of Communication-Related Information Act,

- The Constitution of South Africa,

- Electronic Communications and Transactions Act,

- Promotion of Equality and Prevention of Unfair Discrimination Act,

- The Employment Equity Act,

- The Protection from Harassment Act,

- The Prevention and Combating of Hate Crimes and Hate Speech Act,

- The Consumer Protection Act,

- The Code of Advertising Practice (Advertising Standards Authority),

- The Copyright Act,

- The Trademarks Act.

Position after 2020

In 2020 however, the  Cybercrimes Act, 19 of 2020 (hereinafter referred to as "the Act") was promulgated and this piece of legislation changed the social media landscape forever. This is the first real piece of legislation in South Africa that specifically focuses on behaviours in the online space including social media and also prescribes proper sentences for certain illegal digital and online activities including direct imprisonment.

The Act divides these activities into two categories, Cybercrimes and Malicious Communications. Some of the Cybercrimes identified in the Act are identity theft, cyber fraud, cyber forgery, cyber extortion and theft of incorporeal property.

For purposes of this article though, we will be looking at Malicious Communications (Part 2 of the Act) and I will refer to the sections relevant to social media use being sections 14, 15, 16 and 17.
 

Section 14 of the Cybercrimes Act

Section 14 of the act deals in particular with incitement of violence or damage to property.  In terms of section 14, it is an offence if you disclose a data message to another person or group with the intention to incite, the causing of damage to the property of another, or acts of violence against another person.

An example of this offence would be for instance the forwarding of a Whatsapp message or email to someone else or to a group inviting them to join a violent protest.   

Section 15 of the Cybercrimes Act

Section 15 deals with the act of threatening another person with violence or damage to their property.  It is now an offence if you disclose a data message to another person or group which threatens the person or group with damage to property or with violence against that person. 

An example of this offence can be something as basic as sending a Whatsapp message to another pupil at school in which the sender states that he is going to slap the other person or snap his pencil in half. He does not need to follow through on his threat. The threat alone is enough for the offence to be established.

Section 16 of the Cybercrimes Act

Section 16 of the act deals with the publishing of intimate images of a person by another. The image could be real or simulated, it does not matter! It is thus now an offence if you publish an intimate image of someone without his or her consent, whether the image is real, hand-drawn, computer-generated or in whatever way simulated.  

This will again also include the forwarding of such content or sharing of a link to the content.

Section 17 of the Cybercrimes Act

Section 17 of the Act stipulates that anyone who attempts, conspires with, aids, instigate, instruct, incites, commands or procures another person to commit an offence in terms of the sections mentioned above will be guilty of such offence.

All the offences as contemplated in sections 14 15, 16 and 17 are punishable with a sentence of not more than 3 years in prison or a fine or both.

Criminal Capacity

The sections above are very clear on what constitutes an offence and as such if found guilty of a criminal offence. Apart from the devastating effects a direct prison sentence will have on an adult person we cannot even imagine the dire consequences for our children. In terms of the Criminal Justice Act,  a child even as young as 10 years old may be found guilty of one of these offences. It is therefore of the utmost importance to educate our children about these criminal offences as soon as they possess the ability to understand the meaning thereof. 

In terms of our Criminal Justice Act children under 18 have 3 different levels of criminal capacity that can be explained as follows:

• A child under the age of 10 years cannot be arrested. This means that a child under 10 years does not have criminal capacity and cannot be charged or arrested for an offence. In such a case, the child will be referred to the Children’s Court.
• A child older than 10 years but below the age of 14 years is presumed to lack criminal capacity unless the state proves that he/she has criminal capacity, in which case such a child can be arrested.
• A child above 14, but under 18 years of age, is said to have criminal capacity and can be arrested.

Conclusion

We as parents have the responsibility to, at all times, act within the best interest of our minor children. Take time to read and understand the relevant sections of the Cybercrimes Act yourself, then convey and explain the consequences of contravening these sections to your child. 

Social media is not going to go away soon but one sure way of dealing with the dangers and pitfalls it poses is to make a real effort to always stay well informed and to be proactive in your child's education in particular when it comes to social media and the online world.