The potential pitfalls of sharing information on Social Media

So, you get this message on social media and, for whatever reason, you decide to share it with your friends, without any intention to incite violence. Well, legally, you could get into serious trouble.

An article published by Werksmans titled Incitement of public violence (on social media) and the repercussions for individuals and contracts, notes: “…the intention of the accused’s is irrelevant, what is relevant is whether or not a reasonable person would expect that the consequences of the accused’s conduct to be the incitement of public violence.

We quote below excerpts from the article but urge readers to click on the link above to read the full publication.

With the recent public unrest and public violence outbreaks in the country the President of the Republic of South Africa with the Minister of Police, have vowed to prosecute the perpetrators as well as the inciters of the public violence.

What about my right to freedom of expression?

“Section 16 of the Constitution of the Republic of South Africa, 1996 provides everyone with the right to freedom of expression. However, in terms of section 16(2) that right to freedom of expression does not extend to the incitement of violence. Thus, an argument that one must balance the right to freedom of expression and incitement of violence will, in our opinion, not be successful.”

The Criminal Offence

Inciting public violence is a common law criminal offence, however, the requirements for the public incitement have been codified in section 17 of the Riotous Assemblies Act No. 17 of 1956 (“the Act”).

According to section 17 of the Act, a person is deemed to have committed the common-law offence of incitement to public violence if a person has conducted him/herself in a manner, which the reasonable consequence would be the commission of public violence by others.

Incitement of Public Violence on Social Media Platforms

For there to be incitement of public violence, the Act requires that there is offending –

• conduct by the accused.
• words spoken by the accused; or
• words published by the accused.

The article then discusses the outcome of a case that made headlines during the Rhodes must fall campaign, in which a complaint was laid against a person wearing a shirt with the slogan “‘KILL ALL WHITES”.

“In our view, it is on the precedent set by the Hotz case that the recent surge of social media posts inciting violence will be assessed and prosecuted, namely, on an objective basis without considering the intention of the “poster” but rather what the reasonable person reading or watching the post may be provoked to do by virtue of the post.”

Making content available on social media that may have the effect of inciting others to commit public violence, may fall within the ambit of the Act. This arguably, also includes posts that you receive from other social media users and then share on your own social media platform as this means that you have made the post “available on the internet”.

The author states that, if you receive offending posts and have not made the posts publicly available, you may, arguably, fall outside the ambit of the Act.

With a vast majority of people obtaining information from news media and social media platforms, due care must be taken when sharing thoughts and opinions not only for the impact they may have on your “followers” but also the legal consequences your conduct, speech or words may attach.