Think carefully before retweeting: South Africa is cracking down on digital abuse

South Africa has recently been subjected to a bombardment of cyber-attacks and/or cyber-related/enabled crimes, with many individuals and organisations caught off guard.

South Africa was rated third in the world in terms of the number of cybercrime victims in 2021. As a result, cyber security is becoming a significant issue, particularly in light of social networks’ increasing ubiquity (omnipresence).

Digital abuse and cybercrime are becoming increasingly common in South Africa, with footage seized from Malusi Gigaba’s phone after a breach in 2016, to the more recent disclosure of sexually explicit digital information allegedly belonging to Zanele Sifuba being just a few of many examples.

Non-consensual pornography (sometimes known as “revenge porn”) is a type of digital abuse in which sexually graphic images or films are distributed without the victims’ agreement.

Why seek vengeance? Because, in general, the person in possession of and/or sharing such content is retaliating against a subject who, among other things, has failed/refused to give some type of advantage in exchange for the non-release of compromising or damaging information.

Given the possibility of’secondary-victimisation,’ taking legal action in revenge-porn situations is one of the more successful paths that can assist to ameliorate the harm inflicted.

Legal situation

It is a crime to distribute sexually explicit photographs or films without someone’s permission. Section 16 of the Cybercrimes Act 19 of 2020, in particular, criminalises the unauthorised and deliberate dissemination of a data message including an intimate photograph of a person who has a reasonable expectation of privacy, without the person’s agreement.

The word ‘intimate image’ is defined in the Act as a portrayal of a person, actual or virtual, under which such person is, for example, naked or their genital organs are visible.

Revenge porn features personal images of the subject shown. As a result, it is a criminal offence under the Act, punishable by a fine or imprisonment for a period not exceeding three years (or both).

It should also be noted that people who reshare revenge-porn may face criminal or civil penalties under Section 17 of the Act, which forbids the unlawful and purposeful “…aiding, abetting, inducing, inciting, instigating, instructing, commanding, or procuring to commit an offence” under the Act.

The problem of enforcement

The Cybercrimes Act governs the authorities of the South African Police Service (“SAPS”) to investigate cybercrimes or other offences committed or aided via the use of technology.

Furthermore, the Act calls for the formation of a designated Point of Contact (i.e. a cybercrime unit) to implement the legislation by, among other things, giving rapid assistance in proceedings or investigations involving the commission or attempted commission of cybercrime.

Although the Act provides for enforcement mechanisms (Chapter 6), the Standard Operating Procedures (SOPs) and/or designated Point(s) of Contact (dPOCs) aimed at facilitating such enforcement have yet to be established because the Department of Justice has not announced a start date for Chapter 6 of the Cybercrimes Act.

Indeed, websites such as Cybercrime.org.za serve as a starting place for cybercrime resources, information, and reporting methods. However, doubts about the practical aspects of executing the Act persist.

What, for example, are the procedures for filing a cybercrime complaint? And what about the cybercrimes that are occurring and/or being reported prior to the announcement of the start of Chapter 6?

Legal action

While the Cybercrimes Act is a world-class piece of legislation, procedures for criminal penalty are inadequate. Fortunately, victims of cybercrime, such as revenge porn, do not have to rely simply on criminal consequences; they can also seek justice through civil means.

A victim of revenge-porn may sue for damages on the grounds that the dissemination of sexually explicit information without the victim’s consent may constitute a deliberate impairment or breach of a person’s dignity and privacy (also known as crimen injuria).

In other words, a victim or revenge porn might seek compensation for non-patrimonial losses experienced as a result of another’s unjust, negligent act that resulted in injury to the victim’s personality right(s) (i.e. dignity).

Conclusion

There is no doubting that the Cybercrimes Act is a step in the right direction in terms of bringing South Africa up to worldwide standards for combating cybercrime.

In the context of revenge porn, such a change in South Africa’s legislative system serves as a reminder of the devastating implications of sextortion and other types of cybercrime. Indeed, the Act’s enforcement tools are underperforming in terms of implementation.

Civil remedies, on the other hand, can bridge the enforcement gap for victims (and future victims).

The lesson should be plain to everyone, from jilted (ex)lovers wanting vengeance after a breakup to skilled hackers seeking financial gain through sextortion: vengeance is a two-edged blade, and the longer you hold it, the deeper you cut yourself.

By Ahmore Burger-Smidt,  Head of Regulatory Practice at Werksmans Attorneys

Main Image: Stock-Photo

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