WhatsApp admins warned... you're legal liable for fake news on your group
Durban - If you use WhatsApp, you probably know a lot of false information is shared on the messaging service. But could group administrator (admin/s) be held legally responsible for these messages?
Africa Check found out that WhatsApp group admins can be held liable for what is posted on the group – simply adding a disclaimer and sitting back is not enough. An admin has to take reasonable steps to ensure the group is not abused. But if someone wanted to sue or report the admin, they would have to show that the admin did not take any steps, once they knew the information was false, to stop the information from spreading.
A message circulating on WhatsApp and Facebook in South Africa urges WhatsApp group administrators to post disclaimers on the groups they manage. The message says this will indemnify admins against legal action for any misinformation posted.
It suggests the following wording: “*LEGAL DISCLAIMER* – Important! Please Read This! The creators, admins and officials of this Whatsapp(TM) group are not and will not be held responsible for any content on this group which is deemed to be inappropriate, defamatory, insulting, incorrect or in any other way legally actionable.” It adds that admins are not responsible for content posted without their permission or approval: “Users are responsible for their own conduct and the content which they post.”
Would posting this note remove admins’ responsibility for any content posted on the WhatsApp groups they manage? Or could they still get into trouble in South Africa?
“Everyone has the right to freedom of expression in terms of Section 16 of the Constitution,” Sinal Govender, a lawyer from online legal consultancy Pop Law, told Africa Check. This includes the right to send or receive information. But this right is not absolute and may be limited, as is the case under the Disaster Management Act. The act’s Covid-19 regulations prohibit spreading false information about the disease.
But, Govender said, the regulations specifically require an “intention to deceive”. “The simple act of circulating false news will not attract liability unless the person intended to deceive the end user.”
South African social media law expert Emma Sadleir said a WhatsApp group was seen in the same light as any other public platform.
“As soon as content is published on a WhatsApp group, legally it is treated as if it has been published on the front page of the newspaper,” she said.
In a newspaper, the source, the journalist, the editor, the newspaper company, even the printer and seller, could be held responsible for content, Sadleir said.
In online content, the author, the website and the internet service provider, or ISP, are all responsible.
“I believe the administrator would only be responsible if they themselves posted the illegal material or encouraged the posting of illegal material and took no steps to limit the effect of any illegal material circulated,” Sadleir said. A copied and pasted disclaimer is not a fool-proof way to avoid potential liability, said Govender.
If admins know the information posted on a group is false “and then do nothing to stop it or remove it”, Govender said, “they may then be held liable in addition to the person actually posting the fake content.”
WhatsApp group admins can take steps to ensure that misleading or false information is not shared on their platforms. They should know members’ identities and inform them about the type of content permitted. Members who repeatedly post false or fabricated content should be removed.
If the disclaimer is going to be used in addition to other measures, then it should be posted monthly and if new people join the group the admin should bring their attention to the disclaimer, said Caryn Myers, a lawyer from Myers Attorneys.
If someone wanted to sue or report the admin, “they would have to show that the admin did not take steps, once they knew the information was false, to stop the information from spreading”, Myers says. “If you just put out a disclaimer, and say that you put out a disclaimer and people should read it, in my opinion, that is not good enough”.
WhatsApp also allows you to report a contact or group to it for violating its terms of service. The platform could ban such an account.
On paper, all admins in a particular Whatsapp group in South Africa could be held liable. So if there were five admins in the group, Myers says, one cannot say it is not their responsibility because they were not the first or main admin. “If there are five admins in the group, and I am one of them, I also need to take those steps.”
If one admin took steps to counter the questionable information, they could use that as mitigation, and the others would be safe too because the admins are seen as a collective. However, if none of the admin took steps – placed a disclaimer, asked the person to remove the post or removed that person – then all of the admins would be held liable.
Remember, fake news often goes viral. Even if a message is shared many times, this doesn’t make it true. Don’t forward a message because the sender is urging you to do so. If you see something that’s fake, tell the person that sent it to you and ask them to verify information before they share it
Tips for users to tell the difference between reliable and incorrect information.
- Has the message been forwarded? “Messages with the ‘Forwarded’ label help you determine if your friend or relative wrote the message or if it originally came from someone else,” WhatsApp said. When a message is forwarded from one user to another more than five times, this is indicated with a double arrow icon. Even if a message is shared many times, this doesn’t make it true.
- Check the content carefully. WhatsApp noted that photos, audio recordings and videos could be edited to mislead.
- Look out for mistakes. Many hoax messages have spelling mistakes, said WhatsApp. “Look for these signs so you can check if the information is accurate.”
- Verify with other sources. Search online for facts and check trusted news sites to see where the story came from or if it has been debunked before.
This report was written by Africa Check, a non-partisan fact-checking organisation. Visit africacheck.org