With WhatsApp becoming South Africa’s largest messaging service, South Africans have been warned about the legal weight of messages on the service.
Ann-Suhet Marx, Director and Head of Litigation at VDM Incorporated, said that WhatsApp is now one of South Africa’s largest legal blind spots.
“From neighbourhood disputes to workplace conflicts to high-stakes business fallouts, WhatsApp messages are now at the centre of a growing number of legal battles,” said Marx.
“Yet most South Africans have no idea how these messages are treated in court, what counts as admissible evidence, or how quickly a casual chat can escalate into a defamation claim.”
Mays said that WhatsApp has changed from just a messaging platform to a digital ‘paper’ trail that has real legal consequences in recent years, which leaves the public “dangerously under-informed”.
“WhatsApp has become the modern witness, but unlike traditional documents, WhatsApp messages are fluid, editable, and easily manipulated,” she said. “That creates both opportunity and risk — especially when reputations are on the line.”
She noted that South African law means that online defamation, which sees false statements about a person published, has the same legal implications as statements made in print or broadcast media.
For a defamation claim to succeed, five elements must be proven, she continues:
- Publication: The statement must be made public online.
- Defamation: The content must be false and injure the person’s reputation.
- Reference: The statement must clearly identify the person defamed.
- Wrongfulness: The publication must be unlawful.
- Intention or Negligence: The publisher must have intended to harm or acted carelessly.
She said that a single WhatsApp message forwarded to a community group can reach hundreds of people within minutes, which causes reputational damage that is legally actionable.
While many South Africans use the “delete for everyone” as a legal eraser, Marx stressed that it doesn’t work that way, as deleted messages can be recovered via backups, device forensics or cloud syncs.
“In defamation disputes, deleted messages may even be interpreted as an attempt to conceal wrongdoing. Bottom line: Deleting a message doesn’t delete the legal consequences.”
Although South Africans may believe that a screenshot is enough to prove a case, it is not, as they can be edited or taken out of context.
This is why courts require metadata, device verification, and proof that the conversation is complete. Without authenticity, a screenshot can collapse under scrutiny.
Elsewhere, voice notes are increasingly central to litigation, given their popularity as a communication style.
“They capture tone, emotion, hesitation, and intent, making them powerful evidence in both defamation and contractual disputes.”
“But they also create risk because people often say things in voice notes they would never put in writing. And because voice notes feel informal, they can become the spark that ignites a defamation claim.”
When it comes to breaking the law, clients of VDM Incorporated usually make the following mistakes in
Marx says VDM Incorporated regularly assists clients who unknowingly break the law while trying to gather evidence, and she lists their most common mistakes:
- Forwarding private messages without consent
- Sharing screenshots from group chats
- Accessing a partner’s phone without permission
- Recording calls or voice notes without informing the other party
- Circulating allegations in community WhatsApp groups
WhatsApp is also reshaping contract law, with courts noting that a thumbs-up emoji is enough to show an agreement, while a chat thread can form a binding contract.
With the blurring of informal and formal communication catching many South Africans off guard, WhatsApp users are urged to keep backups of important conversations.
They are also urged to treat WhatsApp like email when discussing anything important, and asked to think twice before forwarding private messages.
While Marx is primarily concerned about WhatsApp’s legal risks, experts from Ziyasiza recently warned South Africans to be cautious about scams on the messaging service.
Original article: https://businesstech.co.za/news/cloud-hosting/848076/another-warning-for-whatsapp-users-in-south-africa/
Photo by Dimitri Karastelev on Unspalsh