Think hard before you hit ‘share’ – it’s your responsibility

Imagine putting whatever you are about to send over WhatsApp, or post to Facebook, Twitter or Instagram, on a huge billboard, with a big photo of your face, your name, and the logo of a company or institution you’re linked to. This is the ‘billboard test’, a tool shared by social media lawyer Emma Sadleir at a recent online event hosted by University of Cape Town (UCT) Vice-Chancellor (VC) Professor Mamokgethi Phakeng titled “Understanding the legal framework of our digital world – reputation, privacy, fake news, social media activism and recent developments in the law”.

Sadleir’s billboard test is intended to help people make decisions about what they post, and the effects such posts or digital content will have on their reputation. She defines digital content as anything sent online, including private messages and group chats.

Sadleir is the founder of the Digital Law Company, which specialises in advising on the legal and reputational risks of using social media. She is also the co-author of the book Don’t Film Yourself Having Sex … And Other Legal Advice for the Age of Social Media, and the author of Selfies, Sexts and Smartphones: A teenager’s online survival guide.

In introducing the topic, Professor Phakeng said an important theme is managing risks we do not yet know about.

“It is in our best interest to know how we use social media wisely, so that our lives in the digital world can help to advance our goals in the physical and professional world.”

“Most of us are not aware of the legal and the long-term ramifications of the posts we put on social media and the digital world. People fail to see how a future employer might view their controversial or sexually explicit messages or videos,” said Phakeng.

The VC said the university’s Communication and Marketing Department has drafted a social media guideline to steer university departments and units in the institutional uses of social media.

“Developing a responsible social media environment begins with learning how we are accountable as individuals who want to exercise our freedom of expression, without infringing on the legal rights of others.

“It is in our best interest to know how we use social media wisely, so that our lives in the digital world can help to advance our goals in the physical and professional world.”

Terms and conditions apply

Sadleir implored attendees to treat social media platforms with cynicism, and understand that these companies have extensive access to one’s data and that their terms and conditions often point out that they can do as they please with pictures and posts.

She pointed out that many platforms have terms and conditions that state that by using the platform, one gives that company a worldwide, global, perpetual, royalty-free, sub-licensable licence to do whatever they want with the content posted, including pictures.

Social media platforms do what they can to keep your eyeballs on them for as long as possible, capitalising on advertising revenue. Sadleir referenced data engineer Frances Haugen’s recent testimony before the United States Senate, in which Haugen showed that Facebook knew that content that evokes anger is much more likely to have users engaging with that content and subsequently spending more time on Facebook.

Preserving reputation online is vital, especially in a time when internet users are able to dig up posts from several years ago.

“You do not touch your phone when you are drunk, angry, and when you are not thinking clearly.

“It is important to understand just how public and permanent digital content is. Digital content has a tattoo effect,” she said.

“There is quote from Warren Buffet: ‘It takes 20 years to build a reputation, and five minutes to ruin it.’ I don’t think it takes five minutes anymore. It takes five seconds.”

Careful with that comment, like or share

Sadleir said that in this year, we have seen the signing of two new pieces of law: the Film and Publications Amendment Act, which criminalises all forms of image-based violence and revenge pornography; and the Cybercrimes Act, which criminalises threats to people, categories of people and property.

An important principle in South African law is the ‘chain of publication’. This means that if you were involved in sharing something, you are responsible for it.

“Liking something is a very active form of association, so be careful about what you’re liking.”

“If I Instagram a picture, and somebody comments underneath that picture – like, uses a racist slur – because it is my Instagram post, I have the ability to delete it; if I don’t, I am legally responsible for it. We have case law to show that if you ‘like’ something, you are in the chain of publication. Liking something is a very active form of association, so be careful about what you’re liking.”

She cautioned people to make sure they are not sharing content – even if they are expressing outrage – which should never have been on social media in the first place.

“In the case of AKA’s fiancé, Anele Tembe, who fell to her death from [the 10th floor of] the Pepper Club Hotel, there were photos and videos of her naked body in the street, with paramedics, on social media. If I shared [that] and said that it shouldn’t be on social media, it would make things worse. This is perpetuating the harm.”

Disclaimers like ‘retweets are not endorsements’ on your profile or ‘I tweet in my personal capacity’ are not going to save you.

“It is a dangerous thing to have in your mind that there is personal capacity and professional capacity. Be careful about these disclaimers. It is certainly not a magic wand that is going to get you out of any trouble that you may get into as a result of what you’re putting on social media.”

Sharing illegal content can land you in defamation-case hot water. Sadleir referenced a case in which a woman posted a defamatory comment on Facebook about her husband’s previous wife – without naming her, but people reading it knew who she was referring to.

In South African law, indirect reference is sufficient. The woman tagged her husband, and he did nothing; he didn’t ‘like’ the post, or comment on it, or share it. But he didn’t untag himself. And the ex-wife sued them both for defamation.

“This means something for your WhatsApp groups. If you are in a WhatsApp group and there’s something indefensible in that group, you have two options: [one is to] say that you disapprove of it, and the other is to leave the group.

“If you don’t do one of those two things, there is an argument that you are in the chain of publication.”

Sadleir said that to sue for defamation, you need to prove three things: that the statement was published, that it refers to you directly and indirectly, and that it hurts your reputation. She referenced a recent case in which celebrity Bonang Matheba sued podcaster Rea Gopane for defamation after he said that she had introduced AKA to a lifestyle of alcohol and drugs when they were dating, and that Tembe had fallen to her death because of this lifestyle.

“Her lawyers wrote a letter of demand for defamation. Rea Gopane published a grovelling apology. Corrections, apologies and retractions are the most powerful responses to a defamation case.”

Body parts and personal information

In a country where a politician such as Malusi Gigaba can have his intimate moments shared online against his will, the dangers of sexting and the effects of it are very real.

Sadleir rounded off her presentation by warning of the dangers of taking pictures of your personal information and private bits.

“Be careful with your personal information: people taking pictures of their vaccine cards and posting them online … please be careful with your ID numbers and passport numbers. People take pictures of their visas. Identity theft is real.

“Turn off your location services for real-world safety.

“Turn on two-factor authentication on all of your accounts.”

She read a Tinder user’s take on the matter of nudes.

“I want to remind everyone of a little movie called Titanic. A girl in 1912 has her naked body drawn in a sketchbook by a random dude that no one has ever heard of, locks the drawing in a safe on a boat, the boat sinks, and her nude picture still ends up on television. No one is safe,” she read.

“If you are going to get involved in sexting, make sure you can’t be identified. Make sure your face and your genitals are not in the same picture. Make sure you are sending it to the right person, and not the wrong WhatsApp group. Make sure you are sending it to someone who you know and trust. Make sure you are sending it to someone who wants to receive it, and beware of sextortion rings.”