What are the Laws regarding Social Media?

The exponential growth of social media around the world cannot be ignored. Less than two decades ago, people who spent their days talking to strangers online were considered weird and socially inept. Nowadays though, you’d be hard-pressed to find someone who isn’t on some kind of social media platform. Everyone from angsty teens to the jaded elderly spends their free time uploading pictures and posting their most intimate thoughts on the internet. But this behaviour can cause some major problems and people have begun to ask themselves – What exactly are you allowed to post online? Can your posts affect your career? And what does the law say about all of this? What are the Laws regarding Social Media?

Due to the rapidly expanding nature of online communications, new laws and regulations are being created and updated every day and it can be difficult to keep track of all of them. That said, the main pieces of legislation that govern our social media interactions include the following –

• The Bill of Rights – While freedom of expression is identified as a South African right in the constitution, certain limitations are also noted which apply to electronic communications as readily as they apply to normal speech. Freedom of expression does not extend to things like propaganda for war, incitement for imminent violence, and advocacy for hatred based on certain prohibited grounds.
• The Protection of Personal Information Act 4 of 2013 (POPIA) – As the name suggests, this act is intended to safeguard personal information while regulating how this information may be processed by different groups. This act chiefly applies to services that manage massive amounts of personal information such as hospitals and insurers.
• The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 – Designed to tackle issues of unfair discrimination, hate speech and harrassment, the ‘Equality Act’ applies to the online world in the same way that it applies to the real one and instances of crimen injuria that appear online can be prosecuted just as quickly.
• The Protection From Harassment Act 17 of 2011 – Sadly, the advent of social media has given rise to new types of virtual harassment. This act provides for the issuing of protection orders when such instances become extreme.
• The Cybercrimes Act 19 of 2020 – One of the biggest fears for many of us living in this digital age is the threat of information theft by nefarious online groups. Luckily, this act prohibits things like unlawful interception and acquisition of data and provides penalties for such actions.

Ok, so that covers the legalese of the situation, but what does this all mean for the average person?

What can you Not Post on Social Media?

As you might imagine, the laws regarding things like crimen injuria and incitement to violence are highly contextual and thus it’s virtually impossible to give an exact list of what you can and cannot post on social media, however, there are some general rules that you can learn which may provide you with some helpful guidelines as you navigate our increasingly regulated online world.

• Free speech limitations apply online – Not only can racist speech be prosecuted when it appears online, these digital communications can also be used as a far more effective means of evidence than would otherwise be available. If you happen to use a racial slur online or post a comment that could be seen as inciting imminent violence, another user who saves that comment could end up making your life very difficult.
• Copyrights apply online – Once you post a piece of digital artwork online, it will be next to impossible to prevent other people from copying that image. That said, a person who reuploads that artwork while claiming that they are the creator may be found guilty of violating copyright law if it can be proven that they are not the original creator.
• Fake News can get you into trouble – Creating or spreading ‘fake news’ about Covid-19 can lead to your prosecution. It bears repeating that spreading this news is also illegal. In other words, even if you do not create this misinformation, a simple retweet could land you in hot water.  
• You can be fired for online comments – The case of Edcon Limited v Cantamessa and Others (2020) shows that certain comments on social media may provide grounds for fair dismissal from the workplace. In other words, just because your posts online don’t put you in prison, it doesn’t mean that they won’t impact your career.

Who can Regulate Social Media?

Social Media can be regulated by either the government or by the owner of the platform. Regulations may take the form of the legislation noted above or they may appear as site-specific rules such as Twitter’s prohibitions on terrorism, child sexualisation, etc.

How can the Government Use Social Media?

Social media is often used by governments as a method of information sharing and interaction with the public. While it can also be utilised as a means of humanizing the power that is, it has quickly become one of the primary means for updating the country with pertinent news.

Can the Government Regulate Social Media?

Yes, they can. In 2016, the United Nations declared internet access to be a human right. Unfortunately, this was part of a non-binding ‘soft law’ resolution meaning that it did not specify that governments had to provide internet access to their citizens but instead, it simply stated that they should not take it away from them, and even then, punishments for doing so would be more along the lines of a strongly-worded condemnation than an economic sanction.

All this means that the government may regulate social media as they see fit with very little interference from other nations. South African regulations can be most similarly compared to those found in the UK, however, there are concerned groups that fear more authoritarian restrictions in the future such as the internet shutdown in Zimbabwe or even the intranet system found in China.

Will my Social Media hinder Future Job Applications?

Social media posts can negatively impact your future job applications. In the past, South African courts have noted that the employment of an individual who makes hateful posts on social media could result in reputational risk for the company involved. It is likely then, that an employer may do some research before hiring you to ensure that your social media history is not filled with bigotry or discriminatory comments.

A recent arbitration by the CCMA, which considered racist comments made by a Clover employee on Facebook, did a great job of compiling a list of cases in which offensive online posts resulted in the dismissal of the individual from their workplace. Additionally, many businesses have their own codes of conduct which may forbid certain behaviour that could damage the public image of the organisation.

It is important to note that this specific case involved racist comments that were made by the employee while they were not at work. The employee’s argument that these comments should not affect their professional standing due to the fact that they occurred outside of the workplace was dismissed by the commissioner and the firing was deemed to be fair.

In other words, your social media posts can get you fired even if you take them outside of work.

In Conclusion – What are the Laws regarding Social Media?

Many of the rules and regulations that apply to our everyday speech extend to our social media posts. The language that is considered to be racist or dangerous could get you into trouble regardless of whether you say it online or in the real world. The vast majority of these rules come from the Equality Act and from the Bill of Rights, however, many social media companies also have their own site regulations which they tend to enforce at their leisure. There are also separate protections that extend to certain types of personal information although these mainly apply to services that deal with huge amounts of account information such as hospitals and banks.

Governments are generally able to regulate social media within their own borders with little interference from the global community. This fact has caused some groups to fear the potential for authoritarianism in the future if the state chooses to heavily regulate online interactions.

Currently, racist posts on social media can result in fines and/or prison sentences for offenders and many businesses have been able to fairly dismiss employees who make such posts even when they are not at work and do so in a personal capacity. Criminal charges also exist for individuals who spread ‘fake news’ relating to the Covid-19 pandemic.

As social media becomes more and more prevalent, it is increasingly likely that employers will make social media background checks a common occurrence. Individuals who make hateful comments online could be viewed as potential reputational risks, a fact that could hurt their odds of employment.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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