Social Media Check

Social Media – What are the new laws and how can a Social Media check benefit you?

The popularity of the use of Social media has made it important for companies and recruiters to include social media checks on the list of pre-employment checks. Social Media checks are important for employers to know who they are employing and get to an insight of their online behaviour and to give an overview regarding interests, hobbies and internet etiquette.

Most people also do not realise that by “re-posting” something offensive from another user or by merely just keeping a post that someone has posted on their wall, they are just as accountable and therefore liable, as they are deemed to be the so-called “owner” of that; so not deleting the content means they agree and accept it.

In November 2018, Parliament’s Justice Committee officially adopted the Cybercrimes and Cybersecurity Bill. The bill is primarily aimed at bringing South Africa in line with other countries’ cyber laws, as well as the ever growing and constant threat of Cybercrime.

The majority of the Bill focuses on criminalising the theft and interference of data, however it also takes into account new laws surrounding any “malicious” electronic communication, which includes all forms of social media too, for example a post on someone’s Facebook wall, a comment on Instagram etc.

You literally could face jailtime for sending these 3 types of Whatsapp or Facebook messages in South Africa:

1. A message which incites damage to property or violence
Any person who unlawfully makes available, broadcasts or distributes by means of a computer system, a data message to a person, group of persons or the general public with the intention to incite:

the causing of any damage to property belonging to; or

violence against, a person or a group of persons.

It further clarifies that ‘violence’ means any bodily harm, while ‘damage to property’ means damage to any corporeal or incorporeal property.

2. A message which threatens persons with damage to property or violence
As an extension of the above, the Bill also makes it an offence to distribute messages which threatens a group of people with violence, or with damage to their property.

The Bill clarifies that ‘group of persons’ means characteristics that identify an individual as a member of a group.

These characteristics include without limitation:

  • Race;
  • Gender;
  • Sex;
  • Pregnancy;
  • Marital status;
  • Ethnic or social origin;
  • Colour;
  • Sexual orientation;
  • Age;
  • Disability;
  • Religion;
  • Conscience;
  • Belief;
  • Culture;
  • Language;
  • Birth and nationality.

3. A message which unlawfully contains an intimate image
Any person who sends a message containing an intimate image of a person without their consent is guilty of an offence.

The Bill describes an ‘intimate image’ as both real and simulated messages which show the person as nude or display his or her genital organs or anal region.

This includes instances where the person is identifiable through descriptions in the message or from other information displayed in the data message.

It also notes that the message is an offence if the person is female and her covered genitals or breasts are displayed in a manner that violates or offends her sexual integrity or dignity.

Any person who contravenes one of the following provisions is liable on conviction to a fine or to imprisonment for a period not exceeding three years, or to both a fine and imprisonment