Legal talk: Freedom of expression. Be careful what you post on social media

We live in a digital world with the ability to reach thousands to millions of people with the press of a button. It is easy to express your views on social media platforms and not always think of the consequences.

With the rise of the era of social media, the airing of public views has become an extremely controversial topic. People are faced with questions like “What am I allowed to say on social media platforms?” and “Why am I not always allowed to express myself as I wish?” After all, it is your personal profile where you are airing your personal views and opinions. Yes, everyone has the right to freedom of expression, but it does not mean that you can always just say what you want.

Freedom of expression

Section 16 of the Constitution protects the right to freedom of expression. This is not just limited to freedom of speech, but also refers to the expression of an emotion or belief. This right does not only enable someone to express their thoughts and opinions, but also the freedom to seek, receive and share information, opinions, thoughts and ideas.

This can be applied to a person's posts on social media and does not just refer to what a person says, but also applies to the wearing of certain items of clothing and so on. However, the rights of other persons must be taken into account. By exercising the right to freedom of expression, a person may say something that humiliates another and violates that person's right to human dignity.

The right to freedom of expression is limited to an extent that expressions cannot be in respect of propaganda for war, provocation of imminent violence, or hate speech based on race, ethnicity, gender or religion that incites the causing of harm. These limitations illustrate that the right to freedom of expression is not absolute and a balance between a personal freedom and a responsibility to respect the human rights of others.

The right to freedom of expression is extremely significant in South Africa as it is aimed at keeping the public informed and it encourages constructive debate by enabling access to information to the public.

However, in a constant evolving democratic society, this limitation itself has become somewhat problematic and sometimes may call for a degree of tolerance. Information and opinions expressed by some individuals may sometimes be offensive and disturbing to others and the question then arises as to whether such information should be subject to the limitations as set out in the Constitution or not.

Freedom to say what you want on social media?

Social media is a public platform where some might feel that they can say whatever they feel like, because they do so from behind a screen or that they use their own personal profile to voice their opinions. However, this is not the case and the rights of others must still be taken into account. If not, it can lead to claims of defamation and hate speech and the person affected by what is posted on social media will still have their legal remedies available to them.

In instances of defamation, a valid defence could be that what was posted was in the public interest. However, this defence in itself does not exclude all liability as the content expressed must be based on facts and be in the public interest for it to be protected. Some might argue that naming and shaming on social media might be in the public interest, but it is not always as simple as that.

The line between what is protected and what amounts to defamation is extremely thin and is therefore a matter the courts often have trouble dealing with. The circumstances of each matter have to carefully be considered in order for a court to determine whether or not the content amounts to defamation.

A recent matter in the Western Cape High Court (Booysen v Major (5043/2021)) has been hailed as a landmark case.  A victim of rape outed her alleged perpetrator on social media through various posts since 2016. He argued that the posts infringed his human rights and he applied for an interdict in 2021. The High Court dismissed his application and said that in this specific instance, the man outed by the victim as her rapist five years ago had no legal right to silence her. However, the reason for this ruling is very specific to the facts of the matter and cannot be applied to all instances.

The High Court held that the alleged perpetrator was not very truthful in his application to have the posts removed. Although he claimed the matter was urgent, the posts made first appeared in 2016 and since then he had not suffered any actual reputational damage and his application did not succeed. In this instance the victim was not requested to remove the posts from social media, not because it is in the public interest, but due to the lack of reputational damages or consequences to the alleged perpetrator.

What does this judgment mean?

This judgment acknowledges everyone's right to freedom of expression, but also highlights that everyone else who might be impacted by a social media post have a right to have their dignity and good name protected.

The outcome of this judgment does not mean that a victim of rape will not be interdicted from publicly naming his/her rapist/abuser in every instance. However, the circumstances of each matter must be noted and the outcome of each case will be different.

Social media is a great platform for individual to voice their opinions and beliefs and share information, however this has to be done with responsibility. We all are liable for what we publish on our social media platforms.

Did you know… Everyone has the right to freedom of expression, but it does not mean that you can always just say what you want.


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