A message circulating on WhatsApp and Facebook in South Africa urges WhatsApp group administrators to post disclaimers on the groups they manage. The message says this will indemnify admins against legal action for any misinformation posted.
It suggests the following wording: “*LEGAL DISCLAIMER* - Important! Please Read This! The creators, admins and officials of this Whatsapp(TM) group are not and will not be held responsible for any content on this group which is deemed to be inappropriate, defamatory, insulting, incorrect or in any other way legally actionable.”
It adds that admins are not responsible for content posted without their permission or approval: “Users are responsible for their own conduct and the content which they post.”
Would posting this note remove admins’ responsibility for any content posted on the WhatsApp groups they manage? Or could they still get into trouble in South Africa? We checked.
What does the law say?
“Everyone has the right to freedom of expression in terms of section 16 of the constitution,” Sinal Govender, a lawyer from online legal consultancy Pop Law, told Africa Check. This includes the right to send or receive information.
But this right is not absolute and may be limited, as is the case under the Disaster Management Act.
The act’s Covid-19 regulations prohibit spreading false information about the disease. But, Govender said, the regulations specifically require an “intention to deceive”.
“The simple act of circulating false news will not attract liability unless the person intended to deceive the end user.”
Admins should ensure no abuse on WhatsApp
South African social media law expert Emma Sadleir told Africa Check that a WhatsApp group is seen in the same as any other public platform.
“As soon as content is published on a WhatsApp group, legally it is treated as if it has been published on the front page of the newspaper,” she said.
In a newspaper, the source, the journalist, the editor, the newspaper company, even the printer and seller, could be held responsible for content, Sadleir said. In online content, the author, the website and the internet service provider, or ISP, are all responsible.
“I believe the administrator would only be responsible if they themselves posted the illegal material or encouraged the posting of illegal material and took no steps to limit the effect of any illegal material circulated,” Sadleir said.
So what should admins do?
A copied and pasted disclaimer is not a fool-proof way to avoid potential liability, said Govender.
If admins know that the information posted on a group is false “and then do nothing to stop it or remove it”, Govender said, “they may then be held liable in addition to the person actually posting the fake content.”
WhatsApp group admins can take steps to ensure that misleading or false information is not shared on their platforms. They should know members’ identities and inform them about the type of content permitted. Members who repeatedly post false or fabricated content should be removed.
If the disclaimer is going to be used in addition to other measures, then it should be posted on a monthly basis and if new people join the group the admin should bring their attention to the disclaimer, Caryn Myers, a lawyer from Myers Attorneys told Africa Check.
If someone wanted to sue or report the admin, “they would have to show that the admin did not take steps, once they knew the information was false, to stop the information from spreading,” Myers adds.
“If you just put a disclaimer, and say that you put a disclaimer and people should read it, in my opinion, that is not good enough”.
(Note: Whatsapp also allows you to report a contact or group to it for violating its terms of service. The platform could ban such an account.)
All admins in a group can be liable
What if there are many admins in a particular Whatsapp group in South Africa, whom of them could be held liable? On paper, all.
“So if there were five admins in the group”, Myers says, one cannot say it is not their responsibility because they were not the first or main admin. “If there are five admins in the group, and I am one of them, I also need to take those steps.”
If one admin took steps to counter the questionable information, they could use that as mitigation, and the others would be safe too as the admins are seen as a collective.
However, if none of the admin took steps - placed a disclaimer, asked the person to remove the post or removed that person - then all of the admins would be held liable.
How to spot fake info on WhatsApp