Abstract
This paper examines the legal liability of social media service providers for unlawful communication in South Africa, framed within constitutional and comparative contexts. While digital platforms increasingly facilitate harmful and unlawful content such as hate speech, defamation, and child exploitation, South Africa’s statutory framework remains fragmented. Key instruments like the Electronic Communications and Transactions Act 25 of 2002 (ECTA), Protection of Personal Information Act 4 of 2013 (POPIA), Cybercrimes Act 19 of 2020, and Films and Publications Amendment Act 11 of 2019 (FPAA) offer limited and reactive mechanisms for platform accountability.
The 2025 landmark case of Digital Law Co v Meta Platforms Inc (2025) Inc Case No. 2025-113515 (GJHC) (unreported) marked a judicial turning point, compelling Meta to disclose user identities and remove unlawful content targeting schoolchildren. This intervention reflects the horizontal application of constitutional rights to dignity, privacy, and child protection, despite jurisdictional challenges posed by foreign-owned platforms.
A comparative analysis with the United States (US), European Union (EU) and United Kingdom (UK) reveals divergent models of intermediary liability from broad immunity under US law to proactive statutory duties in the EU and UK. The paper recommends the adoption of a unified online safety statute, a Digital Harms Ombudsman, and strengthened extraterritorial enforcement to align South African law with global best practices and constitutional imperatives.