What the Cybersecurity Bill says about posting offensive comments on WhatsApp

Legal professionals in South Africa have warned in the past that WhatsApp group admins may be held legally liable for what is said on the chat group – regardless of who has made the statement.

Group admins could be sued for defamation, and the warning followed the arrest of a WhatsApp group admin in India in 2017.

The admin was arrested after a member of a chat group shared an edited image of Indian Prime Minister Narendra Modi.

Lisa Emma-Iwuoha, an associate at Michalsons, has said that South African courts have not dealt with the issue yet, however.

“The Cybercrimes and Cybersecurity Bill does not deal with a general liability for sending messages,” said Emma-Iwuoha.

“However, if you distribute or broadcast a data message that is harmful in terms of the latest version of the Bill, you are guilty of an offence.”

She explained that this means the sender, and only the sender, is responsible for what they send online.

This is in contrast to earlier advice from social media law experts, who warned that the law of South Africa treats a WhatsApp administrator as if they are an editor of a newspaper – and holds them responsible for the content posted.

If someone posted an obscene, controversial, defamatory, or illegal message in a WhatsApp group you are an administrator of, you were advised to immediately dissociate yourself from it.

Emma-Iwuoha offers a different perspective, though, suggesting that the Bill as it currently stand holds any person who broadcasts or distributes a message that is harmful responsible, as defined by the specific clause in the Bill.

“If you send a harmful message you can be guilty of an offence,” said Emma-Iwuoha.

“The platform and distributor are merely conduits, and are just facilitating the messages that are sent on their system, so they are not liable for the contents of the messages.”

Now read: WhatsApp likely to raise age limit to 18 in South Africa

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What the Cybersecurity Bill says about posting offensive comments on WhatsApp