Abstract

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.