From chats to courtrooms: How WhatsApp messages is changing defamation law

WhatsApp messages have become pivotal in an increasing number of legal disputes, where even the most casual conversations can spiral into serious defamation claims.

This stark warning comes from Ann-Suhet Marx, Director and Head of Litigation at VDM Incorporated, a prominent law firm based in Gauteng. Marx highlights how screenshots, deleted messages, and voice notes are not just altering the dynamics of personal communication but are also significantly reshaping the landscape the country's courtrooms.

“WhatsApp has become South Africa’s most trusted communication tool — and one of its biggest 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.”

Marx says she’s seen WhatsApp change from just a messaging platform to a digital “paper” trail, with real legal consequences in recent years, leaving the public “dangerously under‑informed”. “WhatsApp has become the modern witness, but unlike traditional documents, WhatsApp messages are fluid, editable, and easily manipulated. That creates both opportunity and risk — especially when reputations are on the line.

Marx warns that under South African law, online defamation carries the same legal implications as statements made in print or broadcast media. For a claim to succeed, publication, defamation, wrongfulness, and intention or negligence must, among others, be proven.

She pointed to the Constitutional Court 2002 judgment of Khumalo v Holomisa, where the court ruled that online communication is subject to the same standards of accountability as traditional media. “A single WhatsApp message forwarded to a community group can reach hundreds of people within minutes — and cause reputational damage that is swift, severe, and legally actionable,” Marx warns.

One of the biggest misconceptions, according to her, is the belief that a screenshot is enough to prove a case. “It isn’t. Screenshots can be cropped, edited, or taken out of context, which is why the courts increasingly require metadata, device verification, and proof that the conversation is complete. People often assume that having a screenshot equates to having evidence; however, without authenticity, a screenshot can collapse under scrutiny". 

This is especially important in defamation matters, where the exact wording, context, and sequence of messages determine whether a statement is unlawful.

Many rely on “delete for everyone” as if it’s a legal eraser, but Marx warned it is not. “Deleted messages can often be recovered through backups, device forensics, or cloud syncs. In defamation disputes, deleted messages may even be interpreted as an attempt to conceal wrongdoing. Deleting a message doesn’t delete the legal consequences".

Voice notes are increasingly central to litigation, she warns. “They capture tone, emotion, hesitation, and intent, making them powerful evidence in both defamation and contractual disputes. They also create risk because people often say things in voice notes they would never put in writing. Because voice notes feel informal, they can become the spark that ignites a defamation claim,” she warns.

Some of the most common mistakes pointed out by her are forwarding private messages without consent, sharing screenshots from group chats, and accessing a partner’s phone without permission. Recording calls or voice notes without informing the other party and circulating allegations in community WhatsApp groups can also land people in trouble.

“These actions can violate privacy laws or even constitute crimen injuria. People often think ‘if it’s on my phone, I can use it’, but the method of obtaining evidence matters — and illegally obtained evidence can be excluded or lead to counterclaims".

According to Marx, WhatsApp is also reshaping contract law, with courts recognising that a thumbs‑up emoji can signal agreement, a voice note can constitute acceptance, and a chat thread can form a binding contract. This blurring of informal and formal communication is catching many South Africans off‑guard, she cautions.

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