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Admins now carry the can for WhatsApp groups

A change in WhatsApp has made admins responsible for illegal content, writes MERCIA FYNN, director at Kisch IP

A change in WhatsApp features for group admins has effectively made admins responsible for any questionable or illegal messages posted in their groups.

The change, which now allows group admins to delete any messages in the group chat, also makes the admin potentially liable for illegal or defamatory content.

Many South Africans are members of WhatsApp groups to stay up to date with communications of common interest to occupants of a sectional title complex, members of a social club, or parents of school children in a particular grade or class. However, while these WhatsApp groups can be useful, they can also expose members to questionable content.

Previously, only senders could delete messages, but as of 1 September 2022, WhatsApp group admins also have the option to delete any messages posted by any members, effectively giving the admin stronger moderation tools. 

This change also means that South Africans now have a definitive answer to the question of whether admins are responsible for the content shared on WhatsApp groups. In short – yes, they are.

WhatsApp admins now need to ensure that they promptly delete any illegal content, such as hate speech, threats, incitement or defamatory statements, because failure to do so may indicate their endorsement or approval of this content, and could put them at legal risk.

The case Isparta v Richter and Another 2013 (6) SA 529 established the precedent that where a person is tagged or mentioned in unlawful content on social media and they don’t actively take any steps to distance themselves from it, they could face legal action for engaging in the so-called “chain of publication” in respect of that content. It’s important for admins to exercise caution when using social media platforms, even if it’s just the family WhatsApp group chat, as liability may be incurred for simply omitting to perform a few screen taps.

If a person is in a WhatsApp group and is not the group admin, they may express their disapproval of any illegal content or simply leave the group if they wish to avoid potentially being seen to be in the chain of publication.

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