Ahmore Burger-Smidt | Head | Regulatory | Werksmans Attorneys | mail me |
Revenge porn and legislation have become critical issues, as victims face complex legal challenges in seeking justice and protection.
The internet and digital platforms have significantly impacted privacy rights and the legal landscape. Social media, blogs, and other online forums have created a complex cyber landscape. As such, victims of revenge porn find themselves navigating a maze of laws to protect themselves. They also aim to hold perpetrators accountable for online privacy violations and defamation.
On 12 November 2024, Mia J issued a judgement that addressed the position of a victim of revenge porn. KS approached the High Court seeking damages against AM and SHM. The claim followed the creation of an imposter social media profile. Intimate images were recorded and non-consensually published on a fake Facebook account.
AM and SHM also communicated with various colleagues of KS and a senior colleague at KS’s company. AM threatened KS, saying he would send videos described as “porno videos” to her attorney, family, and friends.
But what is revenge porn? Through which legislative lens should it be judged?
In FGX v Gaunt, the term “revenge porn” referred to the conduct of AM. It describes the publication of non-consensual intimate images. This act is recognised as a violation against the victim.
The United Nations Special Rapporteur on Violence Against Women noted that publishing intimate photographs without consent violates privacy and dignity. It also infringes on the right to live free from violence.
The publication of non-consensual intimate images is recognised as a form of violence. This is covered under the Criminal Law Amendment Act 32 of 2007. The South African legal landscape also provides the Domestic Violence Act 116 of 1998.
The constitution and international obligations
The preamble to the Domestic Violence Act recognises that domestic violence can take many forms. It can occur in a wide range of domestic relationships. The preamble also references the constitution and international obligations. These include the United Nations Convention on the Elimination of All Forms of Discrimination Against Women and the Rights of the Child.
The court also considered the Cyber Crimes Act 19 of 2020. This act criminalises the disclosure of intimate images that violate a person’s sexual integrity or dignity. It also includes cases of sexual exploitation.
Additionally, the court had to take note of the Films and Publications Amendment Act 11 of 2019. This act provides penalties for knowingly distributing private sexual photographs without consent. It applies to any medium, including the internet and social media. This complex tapestry of legislation highlights one central fact.
Revenge porn in the digital landscape
Publishing intimate videos of a person without consent is a recognised form of violence. It intersects with the infringement of privacy and dignity. It also leads to defamation from the publication.
Defamation refers to the act of damaging someone’s reputation. In the digital age, defamation often occurs through online platforms. Harmful content can spread rapidly and reach large audiences.
Privacy is under constant threat in the digital landscape. The increasing prominence of online platforms has expanded privacy and defamation concerns. This expansion necessitates robust legal protection for individuals in the digital age.
The judgement in KS’s claim for damages highlights the complexities of addressing cybercrime, defamation, and privacy violations. It also emphasises the far-reaching impact these violations have on the victim’s life. The protection of victims requires a complex tapestry of legislation.
