Friday, 15 January 2016

Racist Posts on Social Media


A recent, heinous post on social media ignited national debate about hate speech, racism, crimen injuria and the right to freedom of expression. 

In the subsequent debate, amongst other things, Gareth Cliff was fired as an idols judge and Jawitz Properties went to great lengths to distance itself from the racist post and the person who made it.  Many politicians, including Mmusi Maimane, have had a say. Some discussion has even suggested amending the laws relating to hate speech.

In any event, the issues discussed are emotive and highly charged.  The point of this blog is not to debate white privilege or racism – rather, to look at the different legal concepts that have been discussed on social media, on radio talk shows and in various opinion pieces.

The impact of technology on social media

First, and by way of context, it is worth emphasizing the obvious: technology (and particularly social media) is inseparably integrated into our lives. The growth in Internet penetration continues unabated and year-on-year statistics, although slowing over the last five years, continue to show steady growth – particularly in developing countries.  To illustrate the point: it is estimated that in 1995 less than 1% of the global population had access to the Internet; in 2015, this number has swelled to more than 46% of the population. Further, in South Africa, it is estimated that just under 50% of the population has some form of Internet access (including mobile Internet connectivity): enormous growth, in any language!

Inevitably, with that much growth, disputes and criminal offences will increase.  The law must adapt.

Freedom of expression

What is it?  As pointed out by the Freedom of Expression Institute, it is the “liberty to be able to hold opinions and to impart and/or receive these as well as ideas and information to others in any form”.
As with many other countries, freedom of expression is constitutionally guaranteed in South Africa by section 16 of our Constitution of 1996.  The right is imperative to foster transparency, enable critical scrutiny, protect the marginalized and oppose corruption - however, in South Africa it is not an absolute right and does not give persons free reign to say (or post on social media) whatever they feel is appropriate.   Equally, venting anger or frustration cannot be done in a way that will infringe on the rights of others.  Therefore, the “I can say what I like because of freedom of expression” attitude that appears to dominate social media is simply incorrect. Criminal sanctions are possible and civil action likely if the mark is over-stepped.
Section 16(2) lists specific exclusions from the right to freedom of expression; these include hate speech, incitement to violence and propaganda for war.  Consequently, if the expression is classified as hate speech there is no constitutional protection (or any other form of protection) and civil and criminal action may follow.

What is Hate Speech?

Formal definitions vary, but it is essentially expression that advocates hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. 
In Islamic Unity Convention v Independent Broadcasting Authority the court acknowledged that the concept of “harm” includes speech that impinges adversely on the dignity of others.  Crucially, expression that merely offends certain portions of a community does not amount to hate speech – the speech must cause “harm”.   

Consequently, a distinction must be drawn between expression that simply offends and expression that harms or is likely to cause harm.  This is often a tough distinction to make: the key here is the objective meaning of the words, and the likely effect the words will have on the individual in question while taking the context into account.  In Afriforum v Malema, the High Court stated that the true yardstick of hate speech is the effect of the words, objectively considered.

In addition, aside from the constitutional prohibition on hate speech, the Promotion of Equality and Prevention of Unfair Discrimination Act specifically prohibits hate speech.  This Act, it has been argued, creates a wider definition for hate speech by stating that no person may publish, propagate, advocate or communicate words, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful; to incite harm, and promote or propagate hatred.  Consequently, hate speech in terms of the constitution is a narrower concept (in comparison to the Act mentioned above) given that one must show the advocacy of hatred on a listed ground AND that incitement to cause harm.  Conversely, the Promotion of Equality and Prevention of Unfair Discrimination Act definition merely requires the conduct to be either hurtful OR harmful OR to incite harm which conduct promotes hatred.

Be that as it may, some, including a Mail & Guardian author, feel that Sparrow’s Facebook remark “wouldn’t count as hate speech as per the Constitution”, I am not so sure...  For more on this, see this insightful article on De Rebus discussing hate speech and this further Mail & Guardian article discussing whether further hate speech legislation is required. 
Briefly, the word “baboon” has been found to constitute hate speech in the context of the Promotion of Equality and Prevention of Unfair Discrimination Act and objectively, calling someone a monkey probably goes further than merely offending – in my view, it advocates hatred based on race – however, the question may be whether it is enough to constitute incitement to cause harm. 
Viewed differently, if I call someone a bitch, it is likely to offend but, objectively speaking, will probably not constitute hate speech.  Conversely, if I call someone a monkey or baboon, the likelihood is that the speech may cause harm and may therefore constitute hate speech.  It will certainly constitute hate speech in the context of the Promotion of Equality and Prevention of Unfair Discrimination Act, but whether it constitutes hate speech in terms of the constitution is debatable.  For more detail on this topic, see here or here.

How does crimen injuria fit into this issue?

 Crimen injuria is the unlawful and intentional impairment of the dignity or privacy of another person and is a criminal offence. In order to be guilty of this offence, the State must prove each element beyond a reasonable doubt.  This crime can also overlap with criminal defamation if the conduct impairs both dignity and reputation of another person.
However, in many decided cases on this issue, it appears that the conduct must refer to a particular person, and not merely a group of persons.  However, the legal test here will look at whether the complainant was aware of the degrading comments, and felt degraded by them (an impairment of the complainant’s dignitas).  Nowhere in the legal definition, and certainly in many criminal law text books[1] on the issue, is it a specific requirement that a person or individual is specifically referred to.   Therefore, it appears open to a court to use a comment such as Sparrow’s (of a wide nature, referring to a group of persons) and hold that the said comment offended a complainant who read the comments but was not specifically named or referred to.  This latter point is however open to debate it seems.

Further questions

Can a post on social media be both hate speech and crimen injuria? Simply, yes. The two are not mutually exclusive so a post on social media may well constitute a crime (crimen injuria, perhaps criminal defamation) and may also constitute a civil wrong whereby the complainant may pursue a civil action for damages.

Social media – how to deal with racist posts

Firstly, take a screen shot of the post so there is evidence once the post is inevitably deleted.  Where possible, do not engage with the poster.  Moreover, report the post to the platform concerned – all social media platforms have simple reporting mechanisms.  Finally, it is also probably worth the time and effort to report the issue with your local SAPS office and to lay a formal complaint.  It may also be wise to contact an attorney to investigate a civil claim and follow up on the criminal complaint.

Finally, if you are an employer, no matter the size of your business, it is important to have a solid social media policy in place so that when these types of issues arise, a clearly articulated policy is in place to deal with the offender if it is not a cut-and-dry issue such as the one discussed in the opening paragraph.

[1] See CR Snyman and Burchell and Milton.

Wednesday, 9 September 2015

Facebook likes - to buy or not to buy?

Buying fake Facebook Likes is as easy as buying bread and milk. A simple Google search will bring up dozens of websites which promise to give you, ‘real’ or ‘active’ Facebook Likes for a fairly nominal amount.  Many people and brands have been known to buy such likes, the biggest question is; WHY?
Quite simply the answer appears to be: to seem popular.  Trying to create a decent fan following, for a Facebook page, is no easy task and requires a solid, social media strategy.  There is a perception that in order to be portrayed as an established company you must have a large fan base, and that this in turn will help improve visibility.  However, in reality, the actual social worth of a page is judged by the level of interaction it gets after putting up a status, picture or polls.  Given the fact that the vast majority of these, paid for fans, are fake accounts, you will more than likely get no interaction on your posts.  If you are lucky, you may have purchased ‘real’ likes, however there is no way to choose bought ‘fans’ who will actually be interested in your business, and there will be a very low likelihood that they will have any interest in interacting on your page in the future.  As the saying goes: ‘if it’s too good to be true, it usually is’.
Now consider EdgeRank – Facebook’s algorithm that determines which posts go into users’ News Feeds.  If your Facebook page has little or no engagement on your posts, in relation to your number of likes, Facebook presumes you are not posting valuable, informative or worthwhile content, and your EdgeRank will drop.  In a nutshell, this means that nobody will see your posts in their News Feeds – including your real likes, who are actually interested in your product and offerings.  In theory, the higher your number of likes, the more interaction (likes, comments and shares) there should be.   
More importantly than your EdgeRank rating, is the fact that buying Facebook likes is illegal.  The majority of people who provide fake likes do so by creating multiple fake accounts, which is strictly against Facebook terms of use. When you buy them from a person doing so, you become a partner-in-crime.  To make users understand the severity and consequences of the situation, Facebook has revealed some of its fraud-fighting tactics.  It’s quite evident to see that selling and buying fake Likes are illegitimate practices that could result in in heavy price to pay.  The day Facebook realises that your likes are fake your Facebook page might run the risk of getting banned altogether.  
Other than the technical and legal issues, let’s look at this in a simpler context; would you trust a person who has to buy friends?  No.  So why would you trust a company that has purchased likes to look good?  With trust and reputation two of the most important elements of branding, one needs to be very cautious when participating in an activity that can be perceived as deceptive.  If a consumer finds out that you have purchased Facebook likes, which is relatively simple to figure out, you will lose credibility and with it a possible, loyal customer.  
In conclusion, the need to have a large fan base is pure vanity, and it delivers absolutely no value in return of your investment and carries more risk than reward.  Real fans are the people that will actually turn into paying customers, or those who will share your posts and actively interact.  Increasing your real likes or organic reach can seem overwhelmingly difficult, leading you to believe that the only way to succeed at this, is by hiring a social media expert.  This is not the case and with a little bit of research and consistency, you can run a successful page.  Take a look here for some inspiration:

Monday, 31 August 2015

Overview of the Protection of Personal Information Act

Protection of Personal Information Act (POPI): how will it affect you?

We live in an ever-increasing digital world – of that there can be no doubt.  Many of us will not go one single day without checking e-mail, Facebook, Instagram, Twitter or some form of digital material. We are all leaving a digital footprint; and our personal information is often freely accessible with the click of a mouse and a few taps on a keyboard.
Mindful of the fact that personal information is often exploited for commercial gain (it is a vital business asset for purposes of marketing and advertising), or used by those with dubious intentions to commit fraud or send a plethora of unsolicited spam e-mail; the South African Government has recently signed the Protection of Personal Information Act (POPI) into law. 

POPI essentially seeks to set out conditions and reasonable standards for the collection, use, storage and dissemination of any form of personal information. An independent regulator will be established in the next few months and enforcement will be strictly monitored – the maximum penalty for misuse is 10 years in prison, or an administrative fine of up to 10 million Rand.

Although POPI was signed into law on 19 November 2013 (following a painfully slow process through parliament), it is not yet fully effective – only a small part of the legislation is currently in operation and the full Act will only be effective when President Jacob Zuma gives notice of this in the Government Gazette – most anticipate this start-date to be towards the end of 2015, and by no later than 2016.  Moreover, companies and individuals will have a further period of one-year to become fully compliant – so although panic is not required just yet, it is now time to consider what steps to take in order to be fully compliant.
First, the critical element to understand about POPI is the definition of personal information.  What is it? Simply, any information that has the ability to identify a living natural person, or to identify a juristic person (a company, for example).

It is quite a broad definition and can include, for example, any form of contact details (e-mail addresses, telephone numbers, physical or postal address information); demographic or personal information (race, age, sex, identity number, blood type); history of an individual (medical, financial, education, criminal, employment, memberships of associations or organisations), and the definition is wide enough to include personal opinions about a product or service or any form of personal correspondence.  The point is: it is very wide and extremely broad.

With the above in mind, POPI sets out eight conditions that a company or individual must comply with if they collect, use, link, store or share any type of personal information. Briefly, the conditions oblige a person or entity to only collect information with a specific purpose, store it safely, ensure the information is relevant and accurate, only collect what is required and allow the “subject” to inspect it – further, and importantly, personal information can only be collected if the individual has “opted-in”. In other words, the person must specifically agree to the information being collected (subject to an exception dealing with existing clients).

All of the above must be documented in a written policy, and all employees of a business that collects personal information must be aware of POPI, the company policy and how to go about the collection, storage and sharing of the information.

So, what can you do?  First, you must be familiar with POPI if you collect, process, store or share personal information.  You must have a policy and ensure your employees are trained.  You must further ensure your IT systems are adequate for purposes of the storage and retention of the data.  And you must ensure your collection of data, above-all, is compliant with POPI – failure to do so will result in hefty fines and even jail time.  This has meant a change in status quo for many corporate entities – banks, insurers, financial service providers etc. – however, many small to medium businesses are operating in blissful ignorance and continue to do what they have always done – if you are someone who is affected by POPI (most businesses will be), now is the time to think about compliance…

About the author: Lee Swales (LLB, LLM) is a law lecturer at the University of KwaZulu-Natal and a consultant to Swales Inc. He can be contacted on