A recent judgment in which a court ordered a scorned lover and his wife to pay a victim of “revenge porn” R3 550 000 million highlights the complexities involved in addressing cybercrime, defamation, and privacy violations.
In analysing the judgment issued by Judge Shanaaz Mia in KS v AM and Another last November, Ahmore Burger-Smidt, head of Regulatory at Werksmans Attorneys, underscores the profound impact the internet and digital platforms have on privacy rights and the legal landscape.
“Social media, blogs, and other online forums, the cyber landscape, has left victims of revenge porn amidst a tapestry of laws through which they have to navigate when they aim to protect themselves and hold the perpetrators accountable for online privacy violations and defamation,” says Burger-Smidt.
In this case, KS (the plaintiff) sought both general and special damages against AM and SHM (the first and second defendant) after they created a fake social media profile, recorded intimate images, and non-consensually published and distributed them via a fraudulent Facebook account. The defendants also made threatening communications with KS’s colleagues and a senior employee at her workplace. Additionally, AM threatened to send explicit videos – referred to by him as “porno videos” – to KS’s attorney, family, and friends.
When love turns sour
KS and AM were in a romantic relationship from August 2014 to January 2015. AM led KS to believe he was unmarried and proposed to her in December 2014, a proposal she accepted. However, in January 2015, SHM informed KS that she was AM’s wife, prompting KS to immediately end the relationship. Despite this, AM continued pursuing KS and even visited her workplace. KS sent an attorney’s letter requesting that he cease all communication with her.
However, AM persisted, sending WhatsApp messages to KS despite the cease-and-desist letter. He then escalated the situation by threatening to send explicit videos to her attorney, her family, and friends. AM warned that for every step KS took, he would retaliate with three of his own. He further threatened to post a video of them having sex on the fake Facebook profile he had created, which he planned to share with all of their acquaintances. He sent KS a clip of the video to ensure she understood the content’s nature, though she had been unaware that he had been recording their intimate moments.
On 13 August 2015, the fake Facebook profile was created, inviting KS’s friends, family, and professional contacts to join. Explicit images and videos were posted to the account, and on 15 August 2015, AM threatened to send these videos to everyone unless KS slept with him.
KS was soon contacted by friends and family who had seen the content. During the period the profile remained active, the explicit videos also reached individuals unknown to KS. KS deactivated the account once she became aware of the posts.
The judgment noted the significant impact of the abusive conduct on KS, who became reclusive, unable to leave her home, and suffers from PTSD due to the breach of her privacy and integrity. She is also experiencing depression and continues to receive treatment.
“The impact of the first and second defendant’s conduct on the plaintiff’s life is far-reaching,” Judge Mia said.
What is revenge porn, and how should it be judged legally?
KS submitted six separate claims for general and/or special damages related to the recordings, the creation of the false Facebook profile, and the posting of these recordings and defamatory comments to her friends and colleagues on the profile, all intended to harm her and tarnish her reputation. The communication about KS was made via the fake Facebook account on multiple occasions, as well as through email correspondence with her superiors.
The court’s task was to determine the appropriate award of damages in this case.
Judge Mia noted that these claims were novel, as the defamation and the posting of images and recordings of a person online is a relatively recent issue. She stated: “Legislation has been enacted to protect persons against such occurrences and prevent harm.”
Burger-Smidt provides a breakdown of the legislation referenced in Judge Mia’s judgment.
“In FGX v Gaunt the term revenge porn was referred to as the term commonly used to describe the conduct of AM. This is the publication of non-consensual intimate images, recordings, or depictions and is recognised as a violation against persons.
“The United Nations Special Rapporteur on Violence Against Women observed that the publication or posting online without consent of intimate photographs or photoshopped images that are sexualised violates the subject’s right to privacy and dignity and to live a life free from violence.”
The publication of non-consensual intimate images is a recognised form of violence, also in terms of the Criminal Law Amendment Act 32 of 2007.
The South African legal landscape also provides for the Domestic Violence Act 116 of 1998.
“The preamble recognises that domestic violence takes many forms and that it can be committed in a wide range of domestic relationships. The preamble also references the constitution and international obligations, including the United Nations Convention on the Elimination of All Forms of Discrimination Against Women and the Rights of the Child.”
Burger-Smidt notes that the court was also called upon to consider the Cyber Crimes Act 19 of 2020, which criminalises the disclosure of data messages of intimate images where the intimate image violates or offends the sexual integrity or dignity of the person or amounts to sexual exploitation.
“To add complexity to the interpretation of the matter, the court also had to take note of the Films and Publications Amendment Act 11 of 2019, which provides penalties for knowingly distributing private sexual photographs and forms in any medium, including the Internet and social media, without the prior consent of the individual.”
Burger-Smidt says this complex tapestry of legislation points to one central fact – that the publishing of intimate videos of a person without that person’s consent constitutes a recognised form of violence.
“This intersects with the infringement of a person’s privacy and dignity and the defamation occasioned by the publication.”
She says privacy is under constant threat in the digital landscape.
“The increasing prominence of online platforms has expanded the scope of privacy and defamation concerns, necessitating robust legal protection for individuals in the digital age. This judgment… emphasises how far-reaching the impact caused by these grave violations can be on a victim’s life – such that a complex tapestry of legislation is required for their protection.”
Read the full judgment here.
