As technology and social media became part of everyone’s daily lives, it created the unfortunate risk of online abuse. This is also known as cyberbullying and refers to when a person is bullied by another through the use of electronic devices, such as cell phones and computers. For example, one person posts offensive images or comments of another person on social media that negatively impacts that person’s dignity. Another example is where one person threatens another person with violence over text messages.
Cyberbullying amongst children has become a serious problem and can have negative consequences on a child’s mental and emotional wellbeing.
Until recently, South Africa did not have a legislative framework in place that dealt specifically with cyberbullying. To obtain some form of legal recourse, victims can rely on other criminal and/or civil law remedies, such as obtaining a protection order. They can also report a crime incidental to cyberbullying, for example:
- Crimen iniuria: this refers to where the dignity of the victim is injured, for example, if a child is being teased and humiliated by using improper or racially offensive language.
- Sexual exploitation and grooming: this refers to threatening someone to obtain something from him/her, such as pornographic images.
- Criminal defamation: this refers to the intentional and unlawful publication of a matter concerning another person which damages his/her reputation, for example, posting lies about someone on social media for everyone to see.
On 26 May 2021, the Cybercrimes Act 19 of 2020 (“Act”) was finalised (but has not yet came into effect) and is regarded as a major milestone that brings South Africa’s cybersecurity laws in line with international standards.
The Act criminalises a wide variety of cybercrimes, however, examples of crimes specifically associated with cyberbullying include the following:
- electronic messages or social media posts towards a person that incite or threaten that person with violence or damage to his/her property; and
- the disclosure of intimate images of an identifiable person without his/her consent or link an identifiable person to such an image in the description of a data message. Intimate images refer to nude images, images of a person’s private parts (even if that person is wearing clothes), or even edited images where a person is identifiable.
These new cybercrimes will assist with curbing cyberbullying as there are direct criminal consequences linked to sending messages that threatens someone with violence or sending inappropriate sexual images of a person. A person who is found guilty of any of the above crimes may be sentenced to a fine and/or imprisonment that does not exceed three years.
The Act also provides that a person who lays charges at the police for these types of cybercrimes can also apply at a Magistrate’s Court for a protection order to prevent the accused person from committing these cybercrimes. A Magistrate’s Act can also order an electronic service provider to remove or disable access to the message or image, for example, an order to hide a social media post.
In respect of children, the above cybercrimes will also form part of the Child Justice Act 75 of 2008, which regulates how children will be dealt with when they are accused of committing crimes and what consequences they will face. Imprisonment may be imposed for children between the ages of 10 and 18, but only as a last resort and for the shortest period possible.
If a person is the victim of cyberbullying, it is important that the necessary evidence is kept. For example, to capture the post, text message or picture by taking a screenshot of it. Text messages or e-mails linked to the cyberbullying must also not be deleted. This must be done in order to ensure that the victim can provide evidence of the cyberbullying if a criminal/civil case is opened against the perpetrator.
The new crimes provided for in the Act will be additional to the existing remedies available to victims of cyberbullying. Although the Act did not come into effect yet, it is indeed a step in the right direction in combatting high levels of cyberbullying that came with living in the digital era.