by Nicolene Schoeman-Louw
In recent years, the rise of social media has revolutionised the way in which we communicate and interact with each other. While social media can be a great tool for staying connected with friends and family, it can also be used in harmful or unlawful ways. We will explore how undesirable social media usage can fall foul of three key South African laws: the Protection of Personal Information Act 4 of 2013 (“POPIA”), the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”), and the Cybercrime Act 19 of 2020 (“Cybercrimes Act”).
Firstly, it is important to understand that the Constitution of the Republic of South Africa is the highest law in the land, which protects the right to privacy and freedom of expression. These two competing rights need to be carefully balanced, particularly as we interact online.
The Bill of Rights states that:
“Privacy
14. Everyone has the right to privacy, which includes the right not to have—
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.”
“Freedom of expression
16. Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
The right in subsection (1) does not extend to-
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
POPIA
In summary POPIA regulates the collection, use, and disclosure of personal information in South Africa. Personal information is information outside the public domain and uniquely identifiable in relation to a person or an organisation. POPIA requires that organisations and individuals who collect, use, or disclose personal information do so in a lawful, fair, and transparent manner.
The cornerstone of these regulations is the principle of informed consent. This means that the data subject consents to the use of the information around the requirements of lawful processing.
Undesirable social media usage can fall foul of POPIA in a number of ways. For example, if a person uses social media to collect personal information from others without their consent, this may be a breach of POPIA. Similarly, if a person uses social media to disclose personal information about others without their consent, this may also be a breach of POPIA. Examples of personal information that may be collected or disclosed on social media include names, addresses, phone numbers, and email addresses and photographs.
ECTA
ECTA regulates electronic communications and transactions in South Africa. ECTA sets out various rules and regulations that govern the use of electronic communications platforms, including social media.
Undesirable social media usage can fall foul of ECTA in a number of ways. For example, if a person uses social media to send unsolicited electronic communications, such as spam messages or emails, this may be a breach of ECTA. Similarly, if a person uses social media to send messages that are grossly offensive, indecent, or threatening, this may also be a breach of ECTA.
Cybercrime Act
The Cybercrime Act is a relatively new piece of legislation that regulates various forms of cybercrime in South Africa. The Act sets out various offenses related to electronic communications and transactions, including activities that take place on social media.
Undesirable social media usage can fall foul of the Cybercrimes Act in a number of ways. For example, if a person uses social media to commit cyberbullying, share private or personal information without consent, or engage in hate speech or incitement of violence, this may be a breach of the Cybercrimes Act.
Conclusion
In conclusion, social media can be a powerful tool for staying connected and engaging with others. However, it is important to be aware of the legal framework that governs social media usage, and to ensure that your activities on social media comply with the relevant laws and regulations. Failure to do so may result in legal consequences, including fines, imprisonment, or other penalties. If you are unsure about the legality of your social media usage, it is always best to consult with a legal professional. Contact an Attorney at SchoemanLaw Inc for assistance.
Having a social media policy for the workplace detailing acceptable and unacceptable use and behaviour is also strongly advisable.
Nicolene Schoeman-Louw | SchoemanLaw Inc
Specialist Technology Law, Drafting, Commercial Litigation, Civil Litigation and Alternative Dispute Resolution
https://schoemanlaw.co.za/our-services/technology-law-smart-contracts-and-cyber-law/
Nicolene Schoeman-Louw founded SchoemanLaw Inc in 2007 in South Africa aged 24, and is now the Managing Director of the firm. She is an admitted Attorney of the High Court of South Africa, Conveyancer, Notary Public and Mediator; with a passion for entrepreneurs and helping them reach their most ambitious goals. She obtained her LLB degree cum laude and successfully completed her LLM degree (dissertation) in commercial law and B-BBEE, both at the University of the Free State. In addition, she obtained her postgraduate diploma in financial planning (CFP) at the University of Stellenbosch. She regularly contributes to various publications and shares her knowledge regularly on various radio stations. Nicolene has enjoyed the confidence of many successful entrepreneurs over the years and continues to do so. As a trusted advisor she has actively contributed to the successes of many businesses, helped and continues to help many entrepreneurs build lasting legacies.
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