Sharing a WhatsApp message can land you in jail — but there is an exception

Social media law expert Emma Sadleir warned that South Africans who forward messages inciting violence on WhatsApp or liking such posts on Facebook or Twitter can face criminal prosecution.

A group of suspects was recently arrested and charged with incitement to commit public violence — many of whom used WhatsApp voice notes and social media posts.

It is, however, not only the original creator of the message who is in the firing line. Anyone who forwarded such a post or message can also be charged.

Arinda Truter, an associate at Dingley Marshall Lewin and ICT law experts, said you could face legal action for engaging in the so-called “chain of publication”.

“Anything you share, like, or are tagged in on social media may be deemed to show that you agree with what is being said, even though you are not the creator of the original content,” she said.

“If you share or retweet or like posts, this is through your own direct actions which cannot be attributed to a third party. You cannot escape liability if you made a choice to share something dubious.”

Truter has simple advice for people using social media – “Don’t share or like any questionable content on social media”.

Sadleir also highlighted that you are responsible for the content you share on WhatsApp, Twitter, or Facebook.

There is, however, an exception. If you share a message but clearly state that you do not agree with it, you should not face prosecution.

Fake news on social media

Sadleir said another area which people should guard against is sharing fake news on social media.

In March 2020, regulations were published under the Disaster Management Act threatening people who spread fake news about the coronavirus with a fine or up to six months in prison.

According to the regulations, anyone who creates or spreads fake news about Covid-19 can be prosecuted.

It applies to both the creators of fake Covid-19 news and those who spread the news through social media and other channels.

Any person who intentionally misrepresents that he, she or any other person is infected with Covid-19 is also guilty of an offence.

On conviction, a person is liable to a fine or imprisonment for a period not exceeding six months, or both a fine and imprisonment.

“We did see arrests, and we did see prosecutions,” said Sadleir.

She added that technological interventions – like restricting WhatsApp video forwarding to one person at a time — have also helped to limit the spread of fake news.

Emma Sadleir interview

Now read: Committing high treason using WhatsApp in South Africa — what the law says

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Sharing a WhatsApp message can land you in jail — but there is an exception