WhatsApp Messages in Defamation Law: A New Era in Courtrooms

WhatsApp messages are increasingly moving from private screens to public courtrooms, transforming how defamation disputes are investigated and argued in South Africa. What many users still regard as casual, informal communication is now frequently forming the backbone of serious legal claims, with reputations, careers and businesses at stake.

This warning comes from Ann-Suhet Marx, Director and Head of Litigation at Gauteng-based law firm VDM Incorporated, who says WhatsApp has quietly become one of the most powerful — and misunderstood — forms of evidence in modern litigation. According to Marx, disputes that once relied on verbal testimony or printed documents are now built around screenshots, voice notes, timestamps and deleted chats.

“WhatsApp has become South Africa’s most trusted communication tool — and one of its biggest legal blind spots,” Marx explains. “From neighbourhood disputes and workplace conflicts to high-stakes business fallouts, WhatsApp messages are now at the centre of a growing number of legal battles.”

She notes that over the past few years, WhatsApp has evolved from a simple messaging platform into a digital paper trail with real legal consequences, while the public remains largely unaware of the risks. “WhatsApp has become the modern witness,” Marx says, “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.”

Under South African law, Marx emphasises, online defamation is treated no differently from defamatory statements published in newspapers, on radio or on television. To succeed with a defamation claim, a claimant must still prove publication, defamation, wrongfulness and intention or negligence, among other elements. The platform on which the statement is made does not reduce its legal impact.

Marx points to the Constitutional Court’s 2002 judgment in Khumalo v Holomisa, which confirmed that online communications are subject to the same standards of accountability as traditional media. In the age of instant messaging, that principle carries even greater weight. “A single WhatsApp message forwarded to a community or workplace group can reach hundreds of people within minutes,” she warns. “The reputational damage can be swift, severe and legally actionable.”

One of the most common misconceptions she encounters is the belief that a screenshot alone is sufficient proof in court. “It isn’t,” Marx cautions. “Screenshots can be cropped, edited or taken out of context. Courts increasingly require metadata, device verification and proof that the conversation is complete. Without authenticity, a screenshot can collapse under scrutiny.”

This issue is particularly critical in defamation cases, where the exact wording, context and sequence of messages often determine whether a statement crosses the line into unlawfulness. A message that appears defamatory in isolation may carry a very different meaning when read within the full conversation.

Marx also warns against the false sense of security created by WhatsApp’s “delete for everyone” feature. “Many people treat it as a legal eraser, but it is not,” she says. “Deleted messages can often be recovered through backups, device forensics or cloud synchronisation. In defamation disputes, deletion may even be interpreted as an attempt to conceal wrongdoing. Deleting a message does not delete the legal consequences.”

As WhatsApp continues to dominate everyday communication in South Africa, legal experts say users must adjust their understanding of privacy and accountability. The line between a private chat and a public statement is thinner than ever, and the courts are increasingly prepared to treat WhatsApp messages as formal evidence.

In an era where a few typed words or a forwarded voice note can trigger litigation, Marx’s message is clear: think before you send. What feels like a moment of frustration or gossip on WhatsApp today may become the centrepiece of a defamation case tomorrow.