South Africa

Currently, there is no specific legislation governing social media use or platforms in South Africa. Social media platforms and users must operate within the existing regulatory framework, which regulates, amongst others, the types of content which can be displayed and distributed, advertising, consumer protection, cybercrimes, data protection, electronic communications, and intellectual property.

Consumer Protection Act 68 of 2008 (CPA)

• The CPA was enacted to promote and protect the economic interests of consumers and to ensure a fair, accessible, efficient, sustainable and responsible consumer market. It applies to every transaction occurring in South Africa, and the promotion of goods and services in South Africa, subject to certain exceptions. The provisions of the CPA are relevant to social media platforms and users as these platforms are widely used to promote goods or services to consumers, and even to facilitate transactions.
• In addition to the common law consumer protection rights, the CPA provides consumers with a number of rights, and places corresponding restrictions on suppliers. These consumer rights include, but are not limited to, the right to privacy, disclosure of information, fair and reasonable marketing, and the right against discriminatory marketing.

Defamation

• The right to freedom of expression, including freedom of the press and other media, is enshrined in section 16 of the Constitution of the Republic of South Africa, 1996. However, this right is not without limitation.
• Defamation in South Africa stems from the common law. It is the wrongful, and intentional publication of words or behavior concerning another person which has the effect of injuring a person’s status, good name, or reputation. The criteria to determine if a publication constitutes defamation is whether the claimant’s good name has in fact (objectively) been infringed in the view of the ordinary and reasonable person, and that the defamatory words are not true or in the public interest.
• Defamation claims relating to social media posts are prevalent, due to the very nature of social media – namely, the publication and exchange of information. Ordinarily, a claim for defamation entails a claim for damages between the claimant and the defendant concerned; however, there is also scope for criminal claims. Under South African law the claimant may also obtain an interdict (injunctive relief) to force the defendant to remove the offending posts, without having to first prove any damages, or to give security.

Electronic Communications and Transactions Act 25 of 2002 (ECTA)

• The purpose of ECTA is to enable and facilitate electronic communications and transactions within South Africa. It regulates data messages and electronic transactions, and provides that agreements may be concluded wholly or partly by means of data messages.
• To ensure certainty of the terms, and to comply with the provisions of ECTA, the terms governing the relationship of the social media platform and the user (whether as a supplier, consumer, or otherwise) should be readily available to the user, on the app, website, or elsewhere.
• Furthermore, chapter 7 of ECTA includes a number of consumer protection obligations which apply to electronic transactions. These include, but are not limited to, prescribing cooling-off periods within which consumers are entitled to cancel a transaction without reason or penalty, and requiring suppliers to make specific information available to consumers on the social media platform where the goods or services are offered, and to use a sufficiently secure payment system.

Advertising Regulatory Board (ARB)

• The ARB is an independent body established and paid for by its members in the broader marketing and communications industry, to protect South African consumers through the self-regulation of advertising in the public interest (Source). Membership of the ARB is not mandatory. The ARB established the Code of Advertising Practice (Code), which binds members of the ARB, and includes a specific Social Media Code. The Code is based on the International Code of Advertising Practice, issued by the International Chamber of Commerce.
• The purpose and goals of the Code are to regulate its members to create legal, decent, honest and truthful advertising, to regulate commercial advertising in ensuring that it is prepared with a sense of responsibility to the consumer and conforms to the principles of fair competition in business, and to regulate advertising conducted by government departments and agencies and those persons in non-commercial organizations (excluding the political sphere).
• All advertisers on social media platforms that are members of the ARB must comply with the Code. The ARB and the Code do not have jurisdiction over entities that are not members.

Films and Publications Act 65 of 1996 (FPA)

The FPA was established to regulate the creation, production, possession and distribution of films, games and certain publications, which includes, amongst other things, the distribution of media on social media platforms. It prohibits certain conduct, such as the distribution of media for the purpose of propaganda for war, incitement of violence and advocacy of hate speech, or the distribution of private sexual photographs and films. The protection of children is one of the key aims of the FPA. It prohibits, amongst other actions, the filming and distribution of films and photographs depicting sexual assault and violence against children, and criminalizes the possession, production and distribution of child pornography, and places certain obligations on internet service providers to take all reasonable steps to prevent the use of their services for the hosting or distribution, and accessing, of child pornography. Contravention of the FPA may result in civil and/or criminal sanctions. Notices may be issued to social media platforms under the FPA, ordering the removal of prohibited content

Cybercrimes Act 19 of 2020 (Cybercrimes Act)

• The Cybercrimes Act was enacted to create cybercrime offences and to regulate the investigation and prevention of cybercrimes. Offences under the Cybercrime Act include, but are not limited to, the unlawful and intentional interception of data, cyber fraud, forgery, and extortion, the use of data messages to incite or threaten violence or damage to property, and the distribution of private and intimate images (including simulated images, such as AI generated images of a sexual nature).
• Social media platforms may be ordered to remove prohibited content, and should implement systems which prevent the disclosure of prohibited content, and are sufficiently secure to protect its users and their data from potential cybercrimes.