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.
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.