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Category: Litigation

REVENGE PORN ON THE RISE: LEGAL RECOURSE IN SOUTH AFRICA

REVENGE PORN ON THE RISE: LEGAL RECOURSE IN SOUTH AFRICA

In the digital era we find ourselves in – with the web, social media, smartphones and the ‘screenshot’ – it has become much easier for people to engage in a phenomenon known as ‘revenge porn’. This term is defined by the Merriam-Webster Dictionary as “sexually explicit images of a person posted online without that person’s consent especially as a form of revenge or harassment”. In South Africa, revenge porn is a growing problem with women being the main victims. Studies indicate that this practice disproportionately affects women, with female victims exhibiting a similar range of mental health problems comparable to rape survivors and in extreme cases it can result in suicide. Whether male or female, it is undoubtedly a violation of a victim’s constitutional right to privacy and a strong argument can be made for online abuse being treated as an extension of abuse in the non-digital world.

Current legal remedies in South Africa

When a sexually explicit image or video is posted online, practical considerations initially outweigh legal considerations. The main concern is having the photo or video removed as quickly as possible, before it goes viral. In addition, many people are advised to log off and delete their profiles from social media accounts, but in the long term this does not adequately solve the problem, it merely ignores it.

To date, the complexities of the law in this area lag behind technology and revenge porn is not yet a criminal offence in South Africa, although as discussed below, this position is likely to change soon. Nevertheless, victims have other available legal remedies, some more effective than others. One option for a victim of revenge porn is to sue for civil damages as it constitutes defamation of character. Another option is to sue for crimen injuria, which would involve a case being opened at the police station. Essentially the accused should be criminally prosecuted for violating the victim’s dignity. Alternatively, the Protection from Harassment Act 17 of 2011 offers a comparatively cheap remedy, which allows victims to apply for protection orders against perpetrators. South Africa’s Copyright Act 98 of 1978 in addition specifically provides for interdictory relief, which on an urgent basis could provide for the offending images being removed from online.

However, the above legal remedies are not without fault. Litigation can become a costly and lengthy affair, by which time the victim’s reputation has suffered irreparable harm. Copyright law is only applicable where the victim took their own image or video, such as a selfie.

The Films and Publications Amendment Bill of 2015

The Films and Publications Amendment Bill of 2015 (‘the Bill’) proposes the insertion of section 18F into the Films and Publications Act of 1996 (‘the Act’) which will criminalise revenge porn. Essentially section 18F provides that no person may expose through any medium, including social media and the internet, a private sexual photograph or film, if disclosure is made without consent of the subject, and with the intention of causing that individual harm. The prohibition applies even if the subject consented to the original taking of the photograph or film. Section 24E provides that a person contravening the prohibition in section 18F is guilty of an offence and liable on conviction to a maximum fine of R150 000.00 or to imprisonment not exceeding two years, or both such penalties.

On 6 March 2018, the Bill was passed by the National Assembly and transmitted to the National Council of Provinces for concurrence. This Bill seems closer to promulgation than the proposed Cybercrimes and Cybersecurity Bill of 2017, section 18 of which prohibits and criminalises the distribution of a data message of an intimate image without consent.

Conclusion

Although the proposed section 18F is a positive step, legislation which makes revenge porn a statutory offence should not be viewed as the answer. There is rightly the concern that even when the Bill becomes law, enforcement will remain problematic. The police must be adequately trained to deal with revenge porn, to ensure that the law is properly enforced. There is also a stigma associated with revenge porn so very few victims speak out, with even fewer reporting it to the police. Education about this issue remains vital, teaching people from a young age about consent, the value of privacy, the dangers of the digital era, what constitutes a criminal offence and ultimately that prevention is better than cure.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference list:

  • R Essop “Snap of shame: The rough road to stamping out ‘revenge porn’” Mail & Guardian (2018).
  • Sadlier & de Beer Don’t Film Yourself Having Sex (2014).
  • The Films and Publications Amendment Bill 2015.
  • The Films and Publications Act of 1996.
  • The Protection from Harassment Act 17 of 2011.
DETERMINING THE GROUNDS FOR INFORMED CONSENT

DETERMINING THE GROUNDS FOR INFORMED CONSENT

If a person gives consent without acknowledging, understanding and considering their rights beforehand, is their consent legal and permissible in court? In eviction proceedings, it is questioned whether the granted eviction order may be cancelled after the unlawful occupiers had allegedly consented to it.

Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O.

A block of flats, Kiribilly, situated on erven 87 and 88 in Johannesburg was unlawfully occupied by 184 residents consisting of low income earners and unemployed occupiers, where some occupied the residence for a period of 26 years.

The said property was purchased from M L Rocchi, whose attorneys served the unlawful occupiers a letter notifying them of the termination of their right of occupation. The occupiers approached Mr Ngubane to speak on their behalf, and he confirmed with the court that the matter had been settled, as the respondents had been informed.

The High Court granted an order, which was allegedly agreed upon by both parties, to have the occupiers evicted from the property. The question is whether the order is bona fide based on the nature of the consent.

Legislation

Contesting the order’s legal validity, the applicants submitted that, even if the consent was legally valid, the Court was under constitutional and statutory duties to provide that the eviction would be just and equitable.

Respondents submitted that the applicants failed to provide a defence as to the entitlement of remaining in occupation of the property, thus making the order just and equitable, as stipulated by Section 4(8) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act which says, “If the court is satisfied…that no valid defence has been raised by the unlawful occupier[s], it must grant an order.”

Validity of eviction order based on consent 

For consent to be legally effective, it must have been given by the applicants freely and voluntarily with the full awareness of the rights being disregarded. Given that the applicants were not aware of their rights, the factual consent that they allegedly gave was uninformed, therefore not legally binding. Because all information with regards to the conditions of the occupiers was not presented to the courts, the consideration of all relevant factors is disabled, rendering the order invalid. Above all, no information was given as to where the unlawful occupiers would go after the eviction.

Conclusion

In a matter where there is a person claiming to speak on behalf of illegal occupiers in a court appearance, any agreement that s/he has made is not binding to the occupiers because s/he is not the legal representative, nor an occupier. Any statements he makes in court are legally inconsequential, and thus nullified as giving informed or legal consent.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O. [2017] ZACC 18

ALTERNATIVES TO LITIGATION – THE NATIONAL CONSUMER TRIBUNAL

ALTERNATIVES TO LITIGATION – THE NATIONAL CONSUMER TRIBUNAL

A1The advent of consumer protection in South Africa has brought with it various institutions that are working at full speed to ensure the rights of the consumer are protected. This new era of consumer protection has seen the birth of the National Consumer Commission and the National Credit Regulator. Amongst these institutions is the National Consumer Tribunal which was established in terms of Section 26 of the National Credit Act 34 of 2005 (the NCA).

The aim of the Tribunal is to achieve fairness and justice for everyone in the consumer and credit market through the adjudication of disputes about consumer credit and allegations of prohibited practice in terms of the NCA and the Consumer Protection Act.

All sides of an argument are heard before the Tribunal makes a decision. A decision made by the Tribunal carries the same weight as one made by a High Court of South Africa.

Section 137 of the NCA provides that the following parties can lodge a complaint with the Tribunal:

  1. The National Credit Regulator;
  2. A registrant (NCA requires certain entities and individuals to register with the National Credit Regulator for example debt counsellors);
  3. Credit Providers; and
  4. Consumers

A consumer can approach the Tribunal directly in the following circumstances (and on application for various orders including):

  1. To compel a credit provider to produce a statement of account;
  2. For a credit provider to compensate a consumer after the sale of surrendered goods;
  3. For a pawnbroker to compensate a consumer for goods left with a pawnbroker;
  4. To review the sale of goods; and
  5. To review the decision of a debt counsellor not to issue a clearance certificate.

It is vital to note that in terms of the NCA you as a consumer have the right to receive periodic statements of account and also have the right to request certain additional information such as your current balance of account.

Furthermore the NCA specifies in clinical detail the fees and interest which credit providers may charge. Any credit providers that charge in excess of that amount engage in prohibited conduct in terms of the Act.

In circumstances where a dispute regards a complaint about prohibited conduct, the National Credit Regulator, after referral of the complaint, will conduct an investigation. The Regulator can, amongst other avenues available to it, refer the matter to the Tribunal for adjudication thereof.

Consult the website of the National Consumer Tribunal at www.thenct.org.za for more information on the process to follow and to obtain links to all the relevant application forms to complete and submit.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)