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You can be sued for WhatsApp messages

You can now legally be sued for defamation or charged with crimen injuria for comments made on the popular WhatsApp platform. The Rising Sun newspapers and online media interviewed a digital law expert about how defamation on WhatsApp is dealt with in SA.

What are the criteria for WhatsApp defamation? “There are 3 requirements to sue for WhatsApp defamation in SA. These are (1) Publication – where defamatory remarks are shared with or published to a third party. (2) Reference: Where the statements clearly refer directly to or indirectly to a particular person, even without specifically naming. (3) Defamation: It must hurt the reputation of the ordinary-thinking third party. Defamation is an aspect of law that tries to balance two conflicting rights. On one hand you have the freedom of expression versus the right to dignity, which encompasses the right to reputation”.

How are these conditions applied with regards to WhatsApp? “In a one-on-one message on WhatsApp, there is no defamation. As you are sending it directly. However, if you send it on a WhatsApp group, even a private group, there is publication. Therefore, you can be sued for defamation on WhatsApp groups, warns the legal expert. “Thus, whether it is sharing with one person or 100 other people, your act meets the first requirement. In addition, sharing or forwarding that defamatory content in question also makes you responsible for that content, which makes you party to the defamation”.

Define crimen injuria in this regard: “It must be noted that serious infringements on someone’s dignity could amount to crimen injuria, which does not require publication. In these instances, direct messages would be enough to get you in even deeper legal trouble, as you are now dealing with a criminal offence. One such example would be the use of racist remarks, as was the case of Adam Catzavelos, who was criminally charged for using the k***** word on social media. He was sentenced with a fine of R50 000 or 2 years imprisonment, both wholly suspended for 5 years. As opposed to crimen injuria, defamation is a civil and not a criminal offence. However, this does not mean that the punishments are less severe”.

What are the legal implications? “If defamation is found, the court can order the payment of a hefty fine for damages, in addition to an apology and certain efforts to be made to correct the statements”.

How do employees get fired? “When it comes to employees who are typically disciplined or dismissed because of what they say about their jobs or employers on social media, there are generally two categories: (1) Employees who bring the company’s name into disrepute. (2) Employees who breach their duty of good faith towards a company. As FNB fired 4 employees for racial comments on WhatsApp and company emails. As defined by the relevant codes of conduct, people must avoid publishing any behaviour which makes their company look bad. You cannot access WhatsApp, Facebook or other social media sites and say ho much you hate your boss or clients, incompetent colleagues…because you are going to get fired”.