Cyber Bullying and Harassment in South Africa

What is bullying?

Any type of behaviour by one or more persons that cause either physical, emotional or psychological harm to another person or persons.

Examples of bullying include:

  • Calling people names
  • Hitting, punching and biting
  • Spreading rumours
  • Threatening or intimidating people

Cyber bullying is an extension of the above and it includes the use of computers or cell
phones and social media. (Facebook, Twitter and Instagram) to embarrass, threaten or cause harm to another person.

Examples of how cyber bullying is perpetrated:

  • Text messages
  • Picture/video clips
  • Emails
  • Chat rooms
  • Websites

Types of cyber bullying include the following:

  1. Harassment
  2. Involves the consistent sending of messages to a person via cell phone, it is usually repeated and directed at the person
  3. Direct harassment includes messaging, threats or bullying sent directly to the person and therefore follows that indirect harassment is when the person who is bullied has been subscribed to unwanted online services or dating sites.
  4. Impersonation or identity theft
  5. This occurs when someone breaks into an email or social media account and poses as that person and sends messages in an attempt to damage that person’s reputation or friendship.
  6. Outing - Outing involves sharing someone’s secrets or embarrassing information online.
  7. Sexting - Involves
    the sending of nude or semi-nude photos or videos and/or sexually suggestive messages.

Differences between cyber bullying and traditional bullying

  • Cyber bullying is often anonymous and bullies can strike out at any time or from any place;
  • The audience involved in cyber bullying is generally higher due to the fact that the technology is readily available and things can turn “viral” within a couple of minutes;
  • The imagery in cyber bullying is often worse, due to the fact that the bullies can include videos and sound effects which can exacerbate the material in question.

Legal consequences of cyber bullying

  1. Human Rights - Bullying, violates a number of human rights, these include the right to privacy, the right to human dignity, the right to freedom and security of the person.
  2. Crimen Injuria - Is
    the unlawful, intention and impairment or privacy of another person.
  3. Assault (Does not need to be physical) - Any unlawful and intention act which results in another person’s bodily integrity being impaired or which inspires a belief or fear that such action will be carried out.
  4. Criminal defamation - The unlawful and intentional publication of matter concerning another person which
    tends to injure their reputation.
  5. Extortion - An act when a person unlawfully and intentionally obtains some kind of advantage which may be used to that person’s disadvantage.

Legal consequences of sexting

Section 19 of the Criminal Law (sexual
offences and related Matters) Amendment Act, 2007
provides that any person exposing or displaying or causing exposure or the display of child pornography is guilty of an offence.

So by sending or sharing nude or semi-nude photos or videos and/or suggestive messages via cell phones between children may therefore depending on the content, may also therefore fall within the ambit of the possession or creation, producing and
distributing child pornography.

Any child who induces another child to take and send any photos of an illicit nature, shall be guilty of an offence.

What protection does one have to prevent cyber bullying?

The Protection from Harassment Act, 2011 provides comprehensive protection against electronic stalking. The Act transcends beyond the physical aspect of stalking, this is mainly because of the increase of cell phone users and internet users in South Africa.

If a court is satisfied that an incident of harassment is or has taken place, the court may issue an interim protection order at the start of any legal proceedings. In an
effort to apprehend offenders, electronic service providers can now be forced
to reveal details such as the name, email address or cell phone to which the IP
address belongs.

Section 2 of the Act, sets out the process that is required for a Protection order and if the complainant is not legally represented
the clerk of the Court must inform the complainant of the following

  • The relief that is available to the complainant
  • The right to lodge a criminal complaint against the person who is harassing the complainant
    for crimen injuria, assault,
    trespass, extortion

The application must be in writing and any supporting affidavits by people with knowledge of the matter may accompany the application. Once all the clerk of the court has received all the documents he/she must immediately submit the documents to the court.

Interim Protection Order

Once the court has received the application and supporting documents or any other additional evidence it deems fit (oral or written evidence).

If the Court is satisfied that there is prima facie evidence that:

  • The respondent is engaging or has engaged in harassment;
  • Harm is being suffered or may be suffered by the complainant as a result of the behaviour/conduct of the respondent if a protection order is not issued immediately;
  • The protection granted will be in way of an interim protection order and must be served on the respondent by the clerk of the court, sheriff or peace officer;
  • The interim protection order provides that the respondent must show cause on the return date (interim order – temporary order, this is because, often the court will only hear one side of the matter and makes the decision based on the evidence presented. The court then allows for the protection order to be valid from date the interim protection order until the date that the respondent gives their evidence);
  • Once an interim protection order is
    given, the Clerk of the Court, must serve a certified copy and an original
    warrant of arrest (The warrant of arrest will be effected, should the
    respondent violate the interim protection order).

At the return date, the Court may upon hearing the respondent’s case, the Court may make the interim protection order, a permanent order or set it aside.

In Summary, cyber bullying is treated the same as physical bullying and is taken seriously by our Courts. A foreseeable problem would be, when reporting the matter to the police, the police are not sure how to deal with the matter or how to proceed with any evidence.

Our what to do list, should you be a victim of cyber bullying or normal harassment is the following.

  1. Keep all evidence, screenshot any comments, photos or unwanted material
  2. Print out the evidence as this will support any application or affidavit that will be submitted to Court
  3. Report the matter to the police and ensure that you get a case number

Useful numbers

SAPS
Emergency Services:
10111
Childline
South Africa
Report child
abuse to Childline South Africa’s toll-free line: 0800 055 555
GBV Command
Centre
Contact the
24-hour Gender Based Violence Command Centre toll-free number 0800
428 428 
to report abuse
South African
Police Service
Report all
cases of rape, sexual assault or any form of violence to a local police
station or call the toll-free Crime Stop number: 086 00 10111
Legal Aid
South Africa
Call the
toll-free Legal Aid Advice Line 0800 110 110 for free legal
aid if you who cannot afford one
Commission
for Gender Equality
Report Gender
Discrimination and Abuse: 0800 007 709
South African
Human Rights Commission
Call 011
877 3600 
to lodge a complaint about human rights violations.
Domestic
violence Helpline:
Stop Women
Abuse: 0800 150 150
AIDS Helpline 0800 012
322

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Charmaine Schwenn

Charmaine Schwenn

Attorney

Schwenn Inc. Attorneys & Conveyancers

Over the last two decades, Charmaine has grown a loyal following of clients. As a former partner at Tate, Nolan and Knight Inc., Charmaine has worked with clients across a diverse spectrum of industries and needs.