HAS THE TIME COME FOR SOCIAL MEDIA SPECIFIC LEGISLATION IN SOUTH AFRICA

A decade ago, social media platforms such as Facebook, Instagram and Twitter did not exist. However, since their inceptions these platforms have transformed society and the way we interact with one another on a daily basis.

With the recent controversial cases involving high profile individuals, it appears that the information which people post online, whether they do it by means of updating their statuses or simply sharing a photograph can have devastating consequences for the author and or sharer of that information.

Social Media is quickly becoming the most commonly used means of communication and this puts every person with access to social media at risk as they share their views and opinions online in a very public manner.

Unfortunately, there is currently no social media specific legislation in South Africa and therefore it is necessary to consider the following Constitutional rights which come into play as we make use of the various social media platforms:

– Human Dignity;

– Privacy;

– Freedom of Opinion; and

– Freedom of Expression.

The Constitutional Court has stated that: “privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction the scope of personal space shrinks accordingly”.

In other words, when posting our views on social media our rights to freedom of opinion and freedom of expression narrow against others’ rights to privacy and human dignity.

However, are these Constitutional rights enough to regulate this ‘tangled web’ of communications or has the time come for a specific set of norms to govern social media and the use thereof?

The increased litigation, surrounding this new branch of law, suggests that the current law is insufficient.

In the words of Willis J: “social media has created tensions for these rights (to privacy, freedom of opinion, freedom of expression and human dignity) in ways that could not have been foreseen by the founders of our Constitution”. This would mean that the founders of our Constitution could not have sufficiently drafted it to accommodate for the new legal problems which arise on these networks every day and therefore the need for Social Media specific legislation must exist.

The South Gauteng High Court, in what is a first for South Africa, recently laid down a new legal precedent in the realm of laws relating to social media. The court granted a local Facebook user an interdict preventing his friend from posting information about his personal life on the site, after that friend posted defamatory statements about him on Facebook.

In his application, the South African Facebook user sought an order blocking his friend from referring to him in her Facebook posts as well as an order that his friend be arrested for 30 days should she fail to comply.

In his ruling, Willis J stated that there was no evidence that Facebook would agree to take an offending comment or post off the site and that it was far more appropriate to deal with the users of Facebook, rather than the network itself, in cases relating to privacy.

The honourable Judge went on to state that those who post offending material on social media platforms would be well advised to remove these posts immediately at the request of the offended party.

In the ruling, the court did not grant the Facebook user his request to block all content made by his friend about him and there were no existing legal precedents for arrests to be made. However, the court did grant the interdict ordering his friend to remove the offending posts about him as well as to pay the costs of the application.

It seems that litigation surrounding this field will continue to grow as rapidly as social media does and a universal set of rules governing it may be needed very shortly.

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