11 Basics of social media law – part 2

This is the second edition in a three-part series that promise to make readers more social media savvy.

BASIC #4: Know the lingo

LESSON: If you know the crimes that seemingly innocent gossip or a spur-of-the-moment insult constitute, you will know which behaviour to avoid online.

There are certain legal definitions that describe illegal online behaviour. Let us look into some frequently encountered examples.

  • What is defamation?

Defamation is the wrongful, intentional (or in the case of the media, negligent) publication of words or behaviour concerning another which has the tendency to undermine his status, good name and reputation.

  • What is harassment?

The Harassment Act’s definition of harassment is very wide. Whenever you are talking to or about someone who does not want you to speak to or about them, this could constitute harassment. Online bullying is a form of harassment, as is stalking.

  • What is crimen injuria?

The unlawful,intentional and serious impairment of another’s dignity. When crimen injuria is committed, the wrongdoer makes the victim feel that his dignity has been impaired. An insult is a good example of crimen injuria, as is using a degrading term such as the k-word.

  • Hate speech:

The Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (PEPUDA) states that no person may make a statement that promotes or propagates hatred and is hurtful, harmful or incites harm.

Hate speech exists when a statement discriminates against a certain group of people, propagates harming them and is hateful or hurtful.  Hate speech against others based on their race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth are specifically prohibited.

#BASIC 5: Know the consequences of defamation

LESSON? Don’t gossip about anyone online. It will cost you thousands of rand. If you are tagged in a rude post about someone else, untag yourself.  

Defamation: If you defame someone online the court may order you to pay R40 000 in damages.

This happened in 2013 in the High Court case of Mr Isparta v Mrs Richter. Mrs Richter and Isparta were divorcing and their relationship had turned sour. Richter logged onto Facebook and badmouthed Mr Isparta. She tagged a male friend in her statements about Mr Isparta.

The male friend did not untag himself. For that reason, the court held him as liable as Mrs Richter, the defamer. The defamer and her tagged friend did not think that they had done anything wrong, as they presumed they were entitled to publish anything about anyone online. The court ruled that this was not the case and they were slapped with R40 000 in damages.

#BASIC 6: Know the consequences of hate speech, crimen injuria and harassment

LESSON: If you do not want to end up in jail and ruin your reputation, do not bully, harass or insult others online.

The Human Rights Commission deals with hate speech complaints. When you commit hate speech, you are reported to that body and they try to mediate the complaint. If that fails, you end up in the Equality Court. This is a public space where the media may report on the horrible things you have said. The Equality Court route was where Penny Sparrow’s case ended up and her reputation suffered greatly as a result of her hate speech. She also had to pay a fine.

Crimen injuria resulted in Vicky Momberg being convicted as a criminal. She called a black policeman the k-word in 2016. In 2018, she was found guilty of crimen injuria and jailed for two years. If you are guilty of this crime you will have a criminal record and possible jail time.

Harassment is dealt with by the Protection of Harassment Act. In terms of this act, a court order may prohibit anyone who harasses another online from doing so. The moment the harasser does it again, he or she may be arrested immediately and charged in criminal court for breaking the rules of a court order.  This Act is sometimes applied  in dealing with bullies, because bullying is a form of harassment.

BASIC #7: Keep your clothes on

LESSON? Those who strip online get stripped of their good reputations 

Margaret van Wyk is a woman from Schweizer-Reneke who reportedly made a giant mistake in August 2016. She accidentally sent a photo of a vagina (believed to be hers) to a WhatsApp Group, whereas it was meant for her husband.  Within hours, her name and genitals were all over the Internet.

She had committed no crime, but became notorious for the wrong reasons nonetheless.

If the sender or receiver of naked photographs is under the age of 18, you will be dealing with serious criminal allegations. Sexting is a term used to describe the exchange of sexual content between cellphone users. This is done frequently over WhatsApp. According to the Sexual Offences Act, any content of a sexual nature depicting a person younger than 18 is child pornography. Any minor that takes a naked selfie is creating child pornography. When it is sent, distribution of child pornography takes place and any person who has a naked photo of a minor on his or her phone, possesses child pornography. This is a cause for criminal investigations and possibly jail time.

Source: Capricorn Review