Abstract

Memes are part of our social and commercial activities. Memes can be amusing, relatable, and an excellent form of social media marketing. People’s identities are the essence of memes as it involves photographs, videos and voice recordings. There has been a longstanding debate in South African law about whether the unauthorised use of a person’s identity features primarily violates their right to privacy or identity or both. For more than 20 years, South African courts have not resolved this debate. The courts have ruled on a simultaneous violation of both the right to identity and privacy. In our law, the question remains whether using a person’s image without their permission primarily infringes their right to identity or privacy. Memes cause us to revisit this question in the context of social media, where privacy has become diluted. This contribution discusses the application of the principles of delict, particularly the element of wrongfulness, to memes. It demonstrates that the right to identity provides more protection than the right to privacy against memes on social media.