If you like or share a Facebook post which contains questionable information, you can face legal action for engaging in the “chain of publication”.
An example is the recent case where the website African News Updates published a fake article titled “Two arrested over 80,000 ballot papers already marked as ANC votes”.
The Electoral Commission of South Africa (IEC) slated the fake report, and highlighted that it is an offence to make intentionally false statements with the aim of disrupting or influencing an election.
The IEC opened a case with the SA Police Service to investigate the source of the false reports, and for referral for prosecution.
The article received around 20,000 Facebook likes, which raises the question: Is it a legal risk to share or like fake reports?
Verlie Oosthuizen, a social media law expert and partner at Shepstone & Wylie Attorneys, said there is a risk if a person engages in “the chain of publication”.
“When a person likes or shares a comment, they are publishing that comment once again, especially in a Facebook and social media context, as it will appear on that person’s newsfeed,” said Oosthuizen.
“In normal circumstances it may only result in defamation. However, in the election context, where there is specific legislation regarding comments about elections, votes, and political parties, there may be statutory liability,” she said.
This means that anyone who shares or likes a dubious Facebook post could face legal action as part of the “chain of publication”.
Stolen ballot papers article definitely an offence
Nicholas Hall from Michalsons Law Firm said the article about the stolen ballot papers is definitely an offence in terms of the Local Government: Municipal Electoral Act 27 of 2000.
“It is an interesting question of whether a person who shares the article on social media would also be liable, and further if people just retweet or reshare or like it,” said Hall.
Hall said in terms of our law of defamation, sharing, liking, or retweeting constitutes an act of publication – so he would argue that similar logic would apply here.
“However, whether you could attribute intention to create hostility or fear to a person sharing on social media would be far more difficult to prove,” said Hall.
He said it is unlikely that the IEC would pursue criminal action against the general public who share the article.
Regardless of the legal liability, Hall said the public needs to be more responsible in assessing the truth of an article that appears online before republishing it on social media.
Just being tagged in a post can land you in trouble
In 2013, the Pretoria High Court ruled that a person who was only tagged in a defamatory message was liable for defamation.
This person was found guilty as he knew he was tagged in the posts and allowed his name to be used.
Stuart Scott from Webber Wentzel Attorneys said that South African law does not require the defendant to be the originator of the defamatory content.
“Merely repeating a defamatory statement made by another person may constitute defamation,” said Scott.
On Facebook it follows that sharing a defamatory post would be sufficient to meet the publication requirement.