Unauthorised use of images in memes: Revisiting the privacy and identity debate

• DOI: https://doi.org/10.47348/SLR/2022/i4a5
• Published date: 28 March 2023
• Pages: 657-670
• Author: Mashinini, N.
• Date: 28 March 2023

657

https://doi.org /10.47348/ SLR/2 022/i4 a5

UNAUTHORISED USE OF IMAGES IN MEMES:

REVISITING THE PRIVACY AND IDENTITY

DEBATE

N Mashinini

LLB, LLM, LLD (UP)

Senior Lecturer, Faculty of Law, Rhodes University*

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.

Keyword s: Memes; social media; image rights; commercial exploitat ion; privacy

1 Introduction

1 1 Memes in an open world of social media

It can be entertaining to some to look at a meme on social media and

even more exciting to like, share and tag1 friends to that post.2 People often

* I am gratefu l to Professor B Coop er for her comme nts on the fir st draft of th is article and D r A Apostolides

for her langua ge editing servic es Some aspects of this a rticle form par t of research undert aken towards

the aut hor’s LLD, wh ich was supported in p art by the Nat ional Resea rch Foundat ion (NR F) of South

Africa (Gra nt Number: 121887) The opinion s, findings an d recommendat ions expressed in t his research

are that of the aut hor The NRF acce pts no liability wha tsoever in this reg ard

1 Tags link a perso n’s social medi a profile to a post through a c omment or main text of the pos t See A

Roos “Pri vacy in the Facebook Era: A South Afric an Perspective ” (2012) 129 SALJ 375 384; A Roos &

M Slabber t “Defamati on on Faceboo k: Isparta v Ric hter 2013 6 SA 529 (GP)” (2014) 17(6) PELJ 2846

<https://www ajol info/index php/pelj/article/view/113843> (accessed 06-12-2022); Isparta v Richte r

2013 6 SA 529 (GP) paras 7, 35; Heroldt v Wills 2013 (2) SA 530 (GSJ) para 17

2 The ordina ry meaning of a post refe rs to text and audio-vis ual media published on so cial media or blog

sites RE Allen (ed) The Con cise Oxford Dict ionary of Current Englis h 3 ed (2021) defines t he noun

“post” as “a piec e of writing, image or othe r items of content published onl ine, typically on a blog or

social media web site or application” a nd the verb “post” a s “publishing (a piece of w riting, ima ge or other

form of content) onl ine, typically o n a blog or social media websit e application”; H v W 2013 5 BCLR 554

(GSJ) para 16; Heroldt v Wills 2 013 (2) SA 530 (GSJ) pa ra 16

(2022) 33 Stell LR 657

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