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The growth of online communication, including social media, poses regulatory challenges for the state. There may be legitimate reasons to curb forms of online expression, such as hate speech, child pornography, incitement of imminent violence, defamation or copyright infringement. Yet censorship potentially infringes constitutional rights to freedom of expression, privacy, and just administrative action. This article explores the regulation of online expression in South Africa, focusing on the role of social media platforms in publishing or suppressing speech. We compare a range of direct and indirect strategies adopted by democratic states when enforcing their laws online, thereby demonstrating how South Africa combines ‘top-down state control’ with attempted case-by-case regulation of end-point users’ expression on social media. We argue that the legal framework in this context is underdeveloped, and draw on a model of ‘regulated self-regulation’ to propose a legal basis for judicial oversight over social media platforms’ decisions to censor or publish their users’ expression. Under existing law, our courts may review such decisions where they constitute exercises of discretionary contractual powers. This regulatory strategy accommodates the public role played by social media platforms, affording them sufficient scope to choose and implement their own policies, while setting a judicial safeguard for constitutional rights.

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The public-law concept of proportionality is defined by Cora Hoexter Administrative Law in South Africa 2 ed (2012) 344 as follows:

‘Proportionality may be defined as the notion that one ought not to use a sledgehammer to crack a nut. Its purpose is ‘‘to avoid an imbalance between the adverse and beneficial effects . . . of an action and to encourage the administrator to consider both the need for the action and the possible use of less drastic or oppressive means to accomplish the desired end’’. Two of its essential elements, then, are balance and necessity, while a third is suitability— usually referring to the use of lawful and appropriate means to accomplish the administrator’s objective.’

Jeffrey Jowell &Anthony Lester, in their influential essay ‘Proportionality: Neither novel nor dangerous’ (in Jeffrey L Jowell & Dawn Oliver (eds) New Directions in Judicial Review (1988) 51–2 and 59–60), made the point that disproportionality as a ground of review of administrative action is often hidden but nonetheless present in a number of judicial review cases. The concept of proportionality is central to the legal system generally and, even when it is not identified by name, it sometimes explains the basis for judicial review. Paul Craig (Administrative Law 6 ed (2008) para 19-010) supports this view, stating that it has been recognised in English law that ‘there are purely domestic cases where the courts have either explicitly applied proportionality or have reasoned in a manner analogous thereto’.