In South Africa, there is no law or court precedent that renders social media group admins liable for member posts.
Social media users have been asking this question repeatedly after a landmark ruling in the Delhi High Court in India.
In 2016, that court indicated that Indian group administrators would be held responsible for content posted on their groups by other members. In terms of the order, such group administrators could be arrested if posts to their groups were factually incorrect or misleading.
Although the South African position has not been tested in court, there’s always a chance that our courts may come to the same conclusion as the Delhi High Court. Academics have indicated that this is a distinct possibility.
Court precedents originate from court cases, meaning that somewhere, someone will be the “legal guinea pig.” In order for our courts to clarify the law, some South African social media group administrator will have to be held responsible for the acts of group members. Trust me when I say that you do not want to be that guinea pig. Litigation costs thousands.
As a propagator of speech freedom, I do not like to advise people to censor themselves. However, South Africa’s Constitution makes it clear that the right to freedom of expression is limited. No South African may use his right to freedom of expression to unjustifiably infringe upon someone else’s rights. Unlawful defamation is an example of the right to freedom unfairly infringing upon someone’s right to dignity.
If I post someone’s personal details onto Twitter, I could be unjustifiably infringing on someone’s right to privacy.
The Constitution states clearly that your online statements may not constitute hate speech. The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) does not tolerate unfair discrimination.
Although the law does not make group administrators liable for what their group members do, the right thing for any group admin to do, would be to establish guidelines for the group he or she is in charge of. And besides, our courts are likely to follow the Delhi court’s example. The old adage rings true: rather be safe than sorry.
So, what should my group admin guidelines contain?
First of all, indicate what will not be tolerated:
- Hate speech, racism, sexism, homophobia and discrimination are good examples.
- Privacy violations are also a big no-no.
- Because you cannot control group members and cannot perpetually be on your phone or PC checking comments, I would suggest establishing a port of contact for those who spot these types of behaviors. Ask group members to inform you via your e-mail address, for example.
- This best practice is great, because it limits your liability. Academics say that you will probably be held accountable for the contents of your site if (1) – You were aware of it and (2) – Did nothing about it. So establishing a contact method should enable you to avoid liability by being aware of and reacting to unacceptable content posted by users.
- Some community forums have WhatsApp groups to enhance, for example, community safety. Because these groups are used to report crime, strict rules will be a good idea and extend beyond the bare minimum I just explained.
- As group admin, you may determine your own rules. Those who do not like it, don’t have to be group members.
- NO SPAM is always a good one