Introduction

WhatsApp has become one of the most widely used communication platforms in South Africa. Whether through family groups, workplace chats, community networks or social circles, messages can reach hundreds of people within seconds.

While WhatsApp offers a fast and convenient way to communicate, users should be aware that messages shared on the platform can carry serious legal consequences. A message does not become immune from legal scrutiny simply because it is sent electronically or shared within a private WhatsApp group.

Understanding when a WhatsApp message crosses the line into hate speech — and what happens when you forward one — is something every South African should know.

What Is Hate Speech Under South African Law?

Hate speech is not simply any statement that someone finds offensive or hurtful.

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“the Equality Act”) was enacted to prevent and prohibit unfair discrimination, harassment and hate speech, and to promote equality across South Africa.

The law recognises that certain forms of communication can cause serious harm to a person’s dignity and to members of a particular group.

Whether a communication amounts to prohibited hate speech depends on:

• The wording used
• The context in which it was communicated
• The person or group targeted
• The applicable legal requirements

Messages targeting a person or group on prohibited grounds — including race, ethnic or social origin, gender, religion, and other protected characteristics — may give rise to serious legal consequences.

Can Forwarding a WhatsApp Message Make You Legally Responsible?

A common misconception is that a person cannot be held responsible for a message they did not originally write.

For example, someone may receive an offensive message from a friend, forward it to a WhatsApp group, and later argue: “I did not write it. I only forwarded it.”

This argument is unlikely to succeed. South African courts have increasingly recognised that distributing harmful content — regardless of whether you authored it — can attract legal liability. The act of forwarding amplifies the reach of the message and, with it, the potential harm.

Is a WhatsApp Group a Legal “Safe Space”?

Many people assume they can say whatever they want in a WhatsApp group because the communication involves a limited number of people. This is a misconception.

Once a message is shared in a group, it can be:

• Viewed by multiple people
• Copied and screenshotted
• Forwarded to entirely different groups and audiences

The message may reach a far wider audience than originally intended. The fact that communication takes place via WhatsApp does not automatically prevent legal action.

What About Freedom of Expression?

Freedom of expression is a fundamental constitutional right in South Africa. However, it is not unlimited.

Section 16 of the Constitution protects freedom of expression but explicitly excludes certain forms, including the advocacy of hatred based on race, ethnicity, gender or religion that constitutes incitement to cause harm. The Equality Act provides further protection against hate speech, harassment and unfair discrimination.

This means a person cannot avoid legal responsibility by simply arguing that their message was an exercise of the right to free expression. The law requires a careful balance between protecting freedom of expression and safeguarding equally important rights — including the rights to equality and dignity.

Is Every Offensive Message Hate Speech?

No. It is important to distinguish between a message that is merely offensive or unpleasant and communication that meets the legal threshold for hate speech or another unlawful form of conduct.

When assessing a communication, a court may consider:

• The words used
• Who was targeted
• Whether the communication was based on a prohibited ground
• The context in which the message was sent
• The audience to whom the message was distributed
• Whether the communication caused or was likely to cause harm
• Whether the conduct amounts to harassment, unfair discrimination or another unlawful act

Each matter must be assessed on its own particular facts.

Can You Be Sued for WhatsApp Messages in South Africa?

Yes — depending on the circumstances. A person subjected to unlawful WhatsApp communications may have various legal remedies available, which may include:

• An application under the Equality Act relating to hate speech, harassment or unfair discrimination
• An interdict requiring the offending message to be removed or further dissemination to stop
• A retraction or correction
• A formal apology
• Compensation for harm suffered
• Other appropriate relief depending on the circumstances

The appropriate remedy will depend on the nature of the communication, the legal basis of the claim and the specific circumstances of the matter.

What If You Have Received Harmful WhatsApp Messages?

If someone has circulated discriminatory, hateful, threatening or otherwise harmful messages about or against you, do not delete the evidence.

Preserve the following:

• Screenshots of the messages
• The original messages, where possible
• The date and time the messages were sent
• The name of the WhatsApp group
• The identity or telephone number of the person who sent or forwarded the messages
• The identities of people who received the messages
• Any evidence demonstrating the impact or harm caused

It is also important to avoid retaliating by sending equally offensive or threatening messages. Doing so may escalate the dispute and create additional legal exposure. Instead, obtain legal advice about the appropriate steps available to you.

What Should You Consider Before Forwarding a Message?

Before forwarding any message about a person or group, ask yourself:

1. Have you read it carefully? Do not forward content without understanding what it says.
2. Who is being targeted? Is the message directed at a person or group because of their race, ethnicity, religion, gender or another protected characteristic?
3. Are the allegations true? Do not assume that information is accurate simply because someone else sent it to you.
4. What is the potential harm? Could the message damage another person’s dignity or reputation?
5. Who will see it? A message forwarded to one group can rapidly reach many more people.
6. Are you prepared to accept responsibility? The fact that someone else created the message does not necessarily protect you from legal consequences.

When in doubt, do not forward it. Obtain legal advice if you are uncertain about the potential consequences.

Can an Apology Make a Difference?

Courts have acknowledged that an apology and retraction can mitigate harm suffered. In some matters, the refusal to apologise — and a continued defence of the offending conduct — has been relevant to the relief ultimately granted.

This does not mean that an apology will automatically prevent legal proceedings or eliminate liability. However, it demonstrates that how a person responds after harmful material has been circulated can be relevant when the court considers appropriate relief.

If you realise you have shared potentially unlawful material, obtaining early legal advice is important.

Practical Tips for WhatsApp Users

Digital communication carries real-world consequences. Before sending or forwarding any message, consider:

• Whether the message contains potentially discriminatory or hateful content
• Whether it makes serious allegations about another person
• Whether those allegations can be substantiated
• Who will receive the message
• Whether forwarding it could cause harm to another person
• Whether you would be comfortable explaining your conduct before a court

A message may take only seconds to forward, but the consequences can last considerably longer.

Conclusion

WhatsApp may be an informal communication tool, but that does not place it beyond the reach of South African law.

A person who distributes harmful content may not be able to avoid responsibility simply because they were not the original author. The law protects individuals from conduct that infringes their dignity, equality and other legal rights. At the same time, not every offensive statement will constitute hate speech — each matter must be assessed on its particular facts and the applicable law.

Whether you have been targeted by harmful WhatsApp messages, or are concerned about the legal implications of something you have shared, obtaining legal advice at an early stage can help you understand your rights and the steps available to you.

Think before you type. Think before you post. And, most importantly, think before you forward.

For further assistance, consult an attorney at SchoemanLaw.