New WhatsApp change could lead to legal problems for group admins in South Africa

Social media legal expert Emma Sadleir Berkowitz has warned that a new change being introduced to WhatsApp could lead to legal problems for group admins in South Africa.

A WhatsApp update began rolling out to users on September 1, 2022, giving group admins more power and control over the content shared across platforms.

Admins who have enabled the update can long-press on any message sent in the group and “delete for everyone”, adding stronger moderation tools. Previously, only those who sent the message could delete it.

The deadline for these deletions has also been extended from a few hours to a few days.

According to Sadleir Berkowitz, the update is “a game changer” in the South African context. “If South African law gives you the option to delete something and you choose not to, you are legally responsible for the content,” she said.

“As a result of this recent change, if you are the admin of a WhatsApp group, you become legally responsible for everything that appears in that group.”

She said that anyone who is the administrator of a group whose members post hate speech, threats, hate speech or other illegal content, if that content is not deleted, the administrators could be held liable.

“It ends the debate we have long had in legal circles about whether or not an admin of a WhatsApp group is responsible for the content of that group,” she said.

Sadleir Berkowitz has previously highlighted the key risks involved in posting messages and content on social media platforms, including WhatsApp, under two new laws that have come into force.

The Film and Publication Amendment Act criminalizes all forms of image-based violence and revenge pornography. Meanwhile, the Cybercrimes Act criminalizes threats against individuals, groups of individuals and property on social media.

While it has long been known that posting harmful messages on social media can lead to legal issues, she noted that in some cases, sharing, forwarding, liking, or not liking a harmful post can also lead to issues.

Sadleir said this is an important principle in South African law known as the “chain of publication”. That means if you were involved in sharing something, you’re responsible for it, she said.

“If I post an image on Instagram and someone comments under that image — say, uses a racial slur — because it’s my Instagram post, I have the option to delete it; If I don’t do this, I am legally responsible for it.

“We have case law to show that if you ‘like’ something, you are in the publishing chain. Liking is a very active form of association, so pay attention to what you like.”

Sadleir added that disclaimers such as “retweets are not endorsements” or “I tweet in my personal capacity” on your social profile would not exempt you from potential legal action.

She said if you’re in a WhatsApp group and something in that group is unjustifiable, you effectively have two choices:

  • One is to say you disapprove;
  • The other option is to leave the group.

“If you don’t do either of those two things, there’s an argument that you’re down the publishing chain,” she said.

With the latest change from WhatsApp, group admins would now have to actively delete such content.

The Department of Communications and Digital Technologies has published the Film and Publications Regulations, 2022, which enacts South Africa’s Internet content laws came into effect in March this year.

While the regulations target movies, games and published content, they are vague enough to include social media posts. The FPB has not codified exceptions for general public posting on social media.

Read: New “Internet Censorship” Rules for South Africa