No single source of law covers the regulation of social media in South Africa. Instead, several existing laws govern what people and businesses do on social media platforms. These laws protect freedom of expression while also addressing privacy, defamation, hate speech, harassment, cybercrime and harmful online content.
The rights and responsibilities that apply offline generally apply online too.
This article is for social media platforms and businesses that govern social media use, not for individual users. Reduce your legal risk by understanding which understanding which social media law applies and managing those risks in practice. That’s where we can help.
The Constitution
Section 16 of the Constitution of the Republic of South Africa, 1996 protects freedom of expression. This includes the freedom to receive and share information and ideas. Importantly, South African law refers to expression rather than simply speech, giving the right a broad scope.
However, freedom of expression is not absolute. The Constitution excludes certain forms of expression, including propaganda for war, incitement of imminent violence and certain advocacy of hatred that constitutes incitement to cause harm. Courts must also balance social-media expression against other constitutional rights, particularly dignity, privacy, and equality.
Hate speech and harassment
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) regulates hate speech. It applies to speech based on protected grounds such as race, gender and ethnicity. The Protection from Harassment Act also applies to electronic communications. This means people experiencing cyberstalking, threatening messages or other forms of online harassment may seek a protection order.
Defamation
South African common-law defamation principles apply to social media. A claimant must generally show that the defendant published defamatory material about them. Once the claimant proves this, the law presumes wrongfulness and intention. The defendant can then rely on defences such as truth and public benefit, protected comment, and reasonable publication.
These principles apply to content published online, including social media posts, comments, reviews, blogs, videos and podcasts. However, courts must balance a person’s right to dignity and reputation against the right to freedom of expression.
Protection of Personal Information Act (POPIA)
POPIA regulates how personal information is processed in South Africa. It can apply when personal information is collected, used, stored, shared or disclosed through social media. Businesses using social media for marketing, customer engagement or other commercial purposes therefore need to consider their POPIA obligations, particularly when handling users’ personal information.
If your social media platform is based outside South Africa but processes personal information in the Republic, POPIA applies to you. This means you will need a South Africa representative for POPIA.
Regulation of Social Media in the Cybercrimes Act
The Cybercrimes Act 19 of 2020 addresses more serious forms of unlawful online conduct. It creates offences relating to unlawful access to computer systems and data, cyber fraud and unlawful interference with data. It also criminalises specified harmful communications, including certain threats of violence or damage to property, as well as certain non-consensual disclosures of intimate images. What appears to be “just posting” online can therefore sometimes carry criminal consequences.
Films and Publications Act
The Films and Publications Act 65 of 1996 extends South Africa’s content-regulation framework into the online environment. It regulates aspects of online distribution and harmful or prohibited content, with particular protections relating to children.
Electronic Communications and Transactions Act (ECTA)
The Electronic Communications and Transactions Act 25 of 2002 (ECTA) establishes conditional limitations on liability for qualifying service providers performing functions such as hosting, caching and providing information-location tools. It also contains provisions relevant to notice-and-takedown procedures.
This is important for social media because South African law distinguishes between the person who creates unlawful content and the circumstances in which an intermediary may be protected from liability for hosting or providing access to that content.
Will South Africa Ban Social Media for Children?
Unlike countries such as Australia, South Africa currently has no general social-media age ban. Communications and Digital Technologies Minister Solly Malatsi has questioned whether age bans are the right approach for South Africa, particularly because children may misrepresent their age or bypass restrictions
Instead, the Minister has supported stronger enforcement of existing online-safety laws, better digital literacy for children, parents and schools, and greater responsibility for social-media platforms. He has also raised issues such as stronger age-verification measures and labelling AI-generated content as part of the broader discussion around online safety.
Social media regulation globally
Social media regulation is a global issue, not just a South African one. For a wider view, read the Lexing insight on knowing the regulation of social media around the world.
