By Epiphanus Obia
A recent South African court ruling has highlighted an important distinction many WhatsApp users may not realise: while end-to-end encryption keeps messages private from outsiders, it does not shield people from the legal consequences of what they choose to share.
The ruling came after a former councillor was found to have committed hate speech by forwarding discriminatory WhatsApp messages. In a separate case, another South African court ordered a local politician to pay R50,000 in damages after she republished and defended a defamatory WhatsApp message shared in a community group, holding that she could not escape liability simply because she was not the original author.
The decisions underscore a growing legal principle that forwarding harmful content can carry legal consequences, even when the message was written by someone else.
What end-to-end encryption really means
WhatsApp’s end-to-end encryption is designed to protect the privacy of conversations by ensuring that only the sender and intended recipient can read messages. The encryption prevents third parties, including internet providers, hackers and even WhatsApp itself, from accessing message contents while they are being transmitted.
For many users, however, that privacy feature is often misunderstood as a form of legal protection. It is not.
Encryption secures how a message travels between devices. It does not determine whether the content of that message is lawful, defamatory or discriminatory.
Privacy is different from liability
The South African judgments illustrate that distinction.
Although the messages were exchanged through an encrypted platform, the courts focused on the users’ actions rather than the technology protecting the communication.
In one case, the court found that forwarding and later defending the contents of a defamatory WhatsApp message amounted to republishing it, making the individual legally responsible alongside the original author.
The rulings suggest that legal responsibility can extend beyond creating harmful content to intentionally amplifying or endorsing it.
Encryption cannot stop screenshots or evidence
Another common misconception is that encryption prevents WhatsApp conversations from becoming evidence.
While encryption protects messages from being intercepted during transmission, it does not stop recipients from taking screenshots, downloading media, forwarding messages or presenting conversations in legal proceedings where they are lawfully obtained.
Once a recipient has access to a message, they can choose to preserve or share it. Encryption does not control what happens after a message reaches its intended destination.
Messaging apps are changing legal conversations
The South African decisions reflect a broader trend as messaging platforms become central to how people share news, opinions and rumours.
For years, many users have treated private WhatsApp groups as informal spaces where forwarded messages carry little responsibility because they originate from someone else.
Courts are increasingly challenging that assumption, particularly where the content causes reputational harm, spreads discrimination or contributes to other unlawful conduct.
The judgments do not diminish the importance of end-to-end encryption, which remains one of WhatsApp’s strongest privacy features. Instead, they highlight the limits of what the technology is designed to do.
Encryption protects conversations from unauthorised access. It does not remove responsibility for the messages users choose to create, forward or defend.