Are your hands tied when it comes to cyber harassment?

September 1st, 2018

By Amanda Manyame

With the dawn of social media and the increased use of digital mediums for communication, a number of unwelcome negativities came along, such as –

  • cyberbullying;
  • cyberstalking;
  • Internet trolling;
  • catfishing;
  • kittenfishing; and
  • just plain old harassment on the Internet.

With social media ‘cyber harassment’ was born, a term often used and experienced, but yet to be defined in South African and international law. It is an umbrella term that describes conduct that is harassing in nature, facilitated by or involving the use of electronic means of communication.

If you think or know you are being cyber harassed, what legal recourse, if any, do you have?

On 15 December 1999 the Domestic Violence Act 116 of 1998 (the Act) came into effect, providing much needed effective and inexpensive legal procedures for victims of domestic violence.

Section 1 of the Act defines a ‘domestic relationship’ and includes a list of relationships encompassing all types of possible domestic associations between individuals and what is known in pop culture as ‘situationships’.

Furthermore, the section clarifies each act of domestic violence. Note-worthy is emotional, verbal and psychological abuse, which means ‘a pattern of degrading or humiliating conduct towards a complainant, including –

(a) repeated insults, ridicule or name calling;

(b) repeated threats to cause emotional pain; or

(c) the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security.’

‘Stalking’ is defined as ‘repeatedly following, pursuing, or accosting the complainant’.

Moreover, these acts may be conducted via e-mail, facsimile and other forms of communication that do not require the physical presence of the perpetrator.

Without a doubt, the scope of the Act is wide, and the legislator left the definition of an ‘act of domestic violence’ open and stipulated that it is ‘any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant’. Section 5(2) of the Act provides recourse for victims of such harassing behaviour, in a domestic relationship, by providing prima facie evidence of an act of domestic violence being perpetrated against a victim in a domestic relationship, the victim may be granted an interim protection order. In S v Trainor 2003 (1) SACR 35 (SCA) at para 9, the court held that ‘[e]vidence, of course, must be evaluated against the onus of any particular issue or in respect of the case in its entirety.’ Onus in harassment cases conducted electronically or otherwise, is on the complainant to show that they are entitled to protection against the perpetrator because the perpetrator’s conduct constitutes harassment in terms of the Act or any applicable legislation.

The complainant has to identify the perpetrator sufficiently and secondly, the complainant’s evidence – which will initially be adduced by way of affidavit – will have to, on a preponderance of probabilities, show that an act of domestic violence as defined by the Act has been or is being committed.

Harassment is difficult to prove legally as it is, to a large extent, subjective in nature. As a result, countless harassment cases and incidents are unresolved or unreported. The same is true, more so, for cyber harassment incidents because there is difficulty in establishing the identity of the perpetrator and/or a causal nexus between the alleged perpetrator and the harassment. The South African Law Reform Commission: Discussion Paper Project 130 ‘Report on Stalking’ (2004) states that harassment constitutes conduct that is repeated and is regarded as abusive and induces fear of harm. It follows that cyber harassment is behaviour that does not always constitute a crime or impose civil liability on the perpetrator, but it impacts negatively on various rights of an individual. In SATAWU obo Dlamini v Transnet Freight Rail, a Division of Transnet Ltd and Another [2009] JOL 24429 (Tokiso) it was held that the Constitution requires that the primary focus on determining harassment be on the effect on the complainant and ‘that the proper test for assessing if the conduct was indeed harassment is by reference to the “reasonable victim’” instead of the usually applied objective test.

The Act, although it provides for recourse for victims of cyber harassment, does not empower victims with the practical mechanisms or regulatory measures to enable them to obtain the required evidence to obtain a protection order against a perpetrator. Clearly the Act fails victims, particularly in two respects:

  • Providing prima facie evidence could prove to be an arduous task on the part of the complainant as a result of the nature of cyber harassment.
  • Individuals not in a domestic relationship with the perpetrator are not afforded protection.

Fortunately, as a result of this void in the civil and criminal legal framework that did not adequately provide victims of cyber harassment with legal recourse, the Protection from Harassment Act 17 of 2011 came into effect on 27 April 2013. The Protection from Harassment Act provides for an inexpensive civil remedy in instances of cyber harassment and provides recourse for both domestic and non-domestic relationships. The definition of ‘harassment’ in s 1 of the Protection from Harassment Act broadly includes, cyberstalking and electronic communications that may be harmful.

The legislature in enacting the Protection from Harassment Act attempted to rectify the shortcomings of the Act, in particular bringing perpetrators of cyber harassment to justice by including provisions that enable a complainant being cyber harassed, to obtain the required evidence that can allow for positive identification of a perpetrator. For example, s 4 of the Protection from Harassment Act places an obligation on Internet Service Providers (ISPs) to aid law enforcement by providing any information to ascertain the identity of the perpetrator within five days of having been served with a request for same from law enforcement.

Section 4(6) of the Protection of Harassment Act further requires ISPs to inform the identified perpetrator that the ISP has furnished law enforcement with their identity and the ISP must also provide the perpetrator with the particulars of the court, which will preside over the matter, thereby lightening the burden of service of pleadings on to the perpetrator, for the complainant.

As an incentive to ISPs, s 4(8) of the Protection from Harassment Act states that the relevant minister may compensate the ISP that provides information to law enforcement. The Protection from Harassment Act has most certainly eased the burden of proof placed on the complainant.

Section 5 of the Protection from Harassment Act stipulates that a court may order an investigation to ascertain the name and address of the perpetrator. In addition, s 6 empowers the South African Police Service to ascertain the name and address of the perpetrator to assist tracing agents.

The Protection from Harassment Act definitely assists the complainant to discharge their onus. The Protection from Harassment Act states that the perpetrator knew or ought to have known that harm may be caused to the complainant. The presumption of foresight of harm in the Protection from Harassment Act lessens the burden of proof for the complainant because the Act presumes that objectively construed, the actions of the perpetrator caused harm to the complainant and that the perpetrator should have known or foreseen that their actions would have a harmful or have a negative impact on the complainant. This makes it easier for the complainant to prove non-patrimonial harm or damages, such as pain and suffering, which are usually difficult to prove in harassment matters. Therefore, the victim must establish that the communication, caused fear of physical harm to person, property or serious mental, psychological or emotional harm. Finally, an objective harm must reasonably arise from the circumstances. This objective test, as held in the
SATAWU case, is based on the reasonable victim test.

As evidenced by the above, cyber harassment is an act of domestic violence in terms of the Act. Sadly, the Act is not adequately equipped to provide legal recourse to a complainant of cyber harassment. Nonetheless, complainants of cyber harassment can turn to the Protection from Harassment Act to obtain a protection order against perpetrators in such instances, regardless of the relationship between the perpetrator and the complainant.

Notwithstanding the progress already made by the legislator, in enacting the Protection from Harassment Act, to address the issue of cyber harassment and fill the void the Act left, it is important to note that with the continued growth and use of digital forms of communication, such as, artificial intelligence, robotics and blockchain technology, mankind is evolving and developing a digital personality that has rights and responsibilities, which need to be catered for and protected by legislation. Although, in South Africa, the legislator has already enacted legislation such as the Protection from Harassment Act and the Protection of Personal Information Act 4 of 2013. South Africa still has a long way to go with enacting legislation to address acts and/or omissions that have civil and criminal ramifications.

Amanda Manyame LLB (Wits) is a student in Johannesburg.

This article was first published in De Rebus in 2018 (Sept) DR 22.

De Rebus