Ponder before posting, as you may not have the right to be forgotten

December 1st, 2023

There are two approaches that continue to define the global and South African media landscapes, namely, social media and citizen journalism.

In its basic form, social media include platforms, such as Facebook, Twitter, Instagram and WhatsApp. Citizen journalism entails active participation by citizens, (not professional journalists) in the process of gathering, sharing and disseminating information, largely through free online media platforms. There is no doubt that social media platforms have deepened citizen journalism to the depth never imagined before and continue to provide alternative means of sharing information – something that was not possible with traditional media platforms. The intention of this article is to highlight why citizens should ponder before posting information on social media, and the rights one may or may not have to remove this information. There is generally no restriction as to ownership of accounts on social media, and as it is, anyone can register an account, including the so-called parody account – this is an account whose profile is of someone else and not that of the author posting the content.

Unlike professional journalists who are trained and governed by codes of discipline or various conventions, citizen journalists are neither trained nor regulated by any industry body or government. Therefore, this means that citizen journalists, including all those who disseminate information on social media platforms do not account to anyone – which calls for concern, as their actions could at times tarnish people’s reputations.

The question is, what is the recourse to repairing reputational damage occasioned by posts on social media platforms? One of the options is that one could consider going to court – a route, however, that can be both lengthy and costly. Take, for an example the defamation case (State v Phamotse (unreported case no 3/2534/2019) (19-9-2023)) involving Mr Romeo Khumalo, Mrs Basetsana Khumalo and Ms Jackie Phamotse, which was brought to the Randburg Magistrate’s Court. In this case, Ms Phamotse had published content on social media, which Mrs Khumalo regarded as defamatory. It approximately five years for the court to rule in the Khumalo’s favour.

To bring this into perspective, a lengthy court process could mean that the content, which brought about the case in the first place, remains on social media platforms for an extended period, thus causing more harm to the victim, unless the court remedies the situation by granting interim relief by directing deletion of the offensive content from the social media platforms.

This, however, does not account for the fact that social media platforms tend to feed off each other. So, even after deleting offensive content from the account where it was originally posted, it is possible for the same content to find its way to other platforms. This then brings into sharp focus in law the concept aptly called the right to be forgotten.

The right to be forgotten is simply the right to have information detrimental to one’s reputation removed from media search engines. This right was first confirmed by the Court of Justice of the European Union (Court of Justice) in the 2014 landmark case of Google Spain SL, Google Inc v Agencia Española de Protección de Datos (AEPD), Mario Costeja González (C-131/12, 13-5-2014). Without going into all the facts of the case, the Court of Justice ruled that under certain circumstances, individuals may request information related to them to be removed from media search engines. These circumstances include, but are not limited to, instances where the information has become irrelevant and excessive in relation to the purpose for which it was processed. However, in 2019, a French court ruled in Google LLC, Successor in law to Google Inc v Commission Nationale de l’informatique et des Libertés (CNIL) (C-507/17, 24-9-2019) that the right to be forgotten does not have universal application.

What does the law in South Africa (SA) say about the right to be forgotten?

Notwithstanding the ruling in CNIL, the first ruling in the Google Spain case bears relevance to SA and can be referenced and relied upon in an instance where one’s reputation has been scandalised for no justifiable reason. There are two basic reasons for this. First, this is because s 10 of the Constitution provides that, ‘everyone has inherent dignity and the right to have their dignity respected and protected’ – and the right to be forgotten is the right to have one’s dignity respected and protected. The second reason is that s 39(1) of the Bill of Rights of the Constitution provides that when interpreting the Bill of Rights, a court or tribunal –

‘(a) must consider international law; and

(b) may consider foreign law’.

In this regard, South African courts may use the Google Spain case as a reference to motivate one’s right to be forgotten on the various online platforms for the reason that the Google Spain ruling was delivered by an international court, dealing with international law.

There is, however, a caveat as was ruled in Brooks v Minister of Safety and Security [2009] 2 All SA 17 (SCA) that, ‘it is a trite principle of our law, that a person should not be allowed to benefit from his/her own wrongful act.’

Simply put, if you exercise citizen journalism and/or post information that is damaging to your own reputation, the courts will not grant you the benefit of the right to be forgotten.

Therefore, use social media responsibly, practice just citizen journalism and most importantly, ponder before you post.

Sekgoela Sekgoela LLM (Corporate Law) (UP) MTech (Journalism) (TUT) is a candidate legal practitioner at Gwina Attoraneys Inc in Johannesburg.

This article was first published in De Rebus in 2023 (Dec) DR 23.