It cannot be doubted that the right to freedom of expression plays an essential role in a democratic society as this right is instrumental in ensuring that views and opinions pertaining to government structures and political parties can be properly shared and received.
The Constitutional Court in Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (5) BCLR 433 (CC) stated that “… freedom of expression is one of a ‘web of mutually supporting rights’ in the Constitution. It is closely related to freedom of religion, belief and opinion (section 15), the right to dignity (section 10), as well as the right to freedom of association (s 18), the right to vote and to stand for public office (section 19), and the right to assembly (section 17)… The rights implicitly recognise the importance, both for a democratic society and for individuals personally, of the ability to form and express opinions, whether individually or collectively, even where those views are controversial”.
Social media provide new and innovative means of giving South African’s a voice and they can play an important role in safeguarding the right to freedom of expression. In the words of Judge Chetty in Braithwaite v McKenzie 2015 (1) SA 270 (KZP), “in today’s world the most effective, efficient and immediate way of conveying one’s ideas and thoughts is via the internet”.
But it is important to remember that the right to freedom of expression is not unfettered and Judge Chetty cautioned that “… the internet reaches out to millions of people instantaneously. The possibility of defamatory postings on the internet would therefore pose a significant risk to reputational integrity of individuals”.
It must be remembered that freedom of expression is not a superior right in South Africa and must be seen in the context of the rights to dignity and privacy. This was highlighted by Judge O’ Regan in Le Roux and others v Dey 2011 (3) SA 274 (CC) when she stated “with us the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression… What is clear though and must be stated, is that freedom of expressions does not enjoy superior status in our law.”
It is here that many social media users go wrong. There seems to be a mistaken belief that the freedom of expression gives social media users carte blanche to say and post what they want to with impunity. This belief is fostered by the social nature of these platforms and users seem to view posts on social media as no different from a private chat with a close friend. What seems to be lost is that these posts are publications and often go out to a large number of people.
Dissemination of posts
Sadly, posts of a salacious, defamatory or controversial nature tend to be shared and liked with worrying frequency which can result in significant risks – not only to the subject of the posts but to the author and anyone who furthers the dissemination of the posts as well.
In the words of Judge Willis “those who make postings about others on social media would be well advised to remove such posting immediately upon the request of an offended party. It will seldom be worth contesting one’s obligation to do so. After all, the social media is about building friendships around the world, rather than offending fellow human beings. Affirming bonds of affinity is what being “social” is all about”.
So it is essential to remember that social media users do not have carte blanche to post what they please. Online conduct is governed by the same laws as offline conduct and hate speech, incitement to commit violence and defamation are examples of speech that is not protected.
Rosalind Davey is partner in the Employment & Benefits Practice, Bowman Gilfillan Africa Group.
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