Balancing freedom of expression and cyberbullying: Exploring the boundaries

August 1st, 2023
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Freedom of expression is a fundamental right enshrined in many constitutions worldwide, including South Africa’s (SA’s) Constitution. It is the cornerstone of democratic societies, allowing individuals to express their opinions, share information and engage in public discourse.

In the digital age, the concept of freedom of expression has become deeply intertwined with the issue of cyberbullying. While freedom of expression is a fundamental right that should be protected, the question which arises is: Can it sometimes cross the line and amount to cyberbullying? This article examines the fine line between freedom of speech and cyberbullying, evaluating the limits and considering the implications for people and society.

Defining freedom of expression

To understand the potential overlap between freedom of expression and cyberbullying, an in-depth understanding of freedom of expression as a legal and moral concept is required. Exploring how freedom of expression is protected by laws, international conventions and constitutional rights sets the foundation for ensuing discussion.

International treaties emphasise the significance of freedom of speech, while also recognising the need to combat cyberbullying and protect persons from online abuse. Here are some of the key international conventions that address these issues:

  • Universal Declaration of Human Rights (UDHR), 1948

The UDHR adopted by the United Nations General Assembly in 1948 proclaims the right to freedom of expression in Article 19. It states that everyone has the right to hold opinions without interference and to ‘seek, receive and impart information and ideas through any media’. However, this right may be subject to certain restrictions necessary to respect the rights or reputation of others and protect national security, public order, or public health.

  • International Covenant on Civil and Political Rights (ICCPR)

The ICCPR, also adopted by the United Nations, provides further protection for freedom of expression in Article 19. Like the UDHR it recognises ‘the right to hold opinions without interference’ including ‘freedom to seek, receive and impart information and ideas through any media’ but also subject to limitations in respect for other people’s rights.

The South African Constitution upholds the right to freedom of expression, while also recognising the need to balance it with other rights and responsibilities. Specifically, the Constitution protects the freedom of expression under s 16 which states:

‘Freedom of expression –

(1) Everyone has the right to freedom of expression, which includes –

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.’

However, it is important to note that this right is not absolute. The Constitution also outlines limitations and considerations in relation to freedom of expression including:

‘(2) The right in subsection (1) does not extend to –

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.’

In terms of cyberbullying, the Constitution does not specifically address it as a separate concept. However, the Constitution provides protection against harassment and the invasion of privacy, which can be applicable to cyberbullying cases. To give an example, s 14 states the right to privacy, which includes protection against invasion of personal information, while s 12 protects individuals from violence, threats, and harassment.

While the Constitution provides a foundation for protecting individual rights, other legislation and legal frameworks in SA, such as the Protection from Harassment Act 17 of 2011, Electronic Communications and Transactions Act 25 of 2002, Cybercrimes Act 19 of 2020 and the Films and Publications Act 65 of 1996 offer several avenues for addressing cyberbullying.

Identifying cyberbullying

The authors of StopBullying.gov identified cyberbullying as an act of bullying that occurs through digital devices such as mobile phones, computers, and tablets. They describe how it can manifest through various channels, including SMS text messages, messaging apps, social media platforms, online forums and even gaming environments where people can view, participate in or share content. Cyberbullying encompasses behaviours such as ‘sending, posting, or sharing negative, harmful, false, or mean content about someone else’ (StopBullying.gov ‘What Is Cyberbullying’ (www.stopbullying.gov, accessed 1-7-2023)). It can also involve the dissemination of personal or private information with the intention of causing embarrassment or humiliation to the targeted individual (StopBullying.gov (op cit)).

Navigating the boundaries

To strike the correct balance between these two challenges, it is imperative to ensure that freedom of expression does not become a cover for harmful behaviours, while anti-cyberbullying measures do not unreasonably restrict freedom of expression. This often requires a case-by-case analysis.

In the landmark case Heroldt v Wills 2013 (2) SA 530 (GSJ) at para 6, an interdict was obtained against the defendant for posting insulting words about the plaintiff, implying that he was an unfit parent to the daughters due to ‘drugs and alcohol’. The defendant first refused to remove the posts, citing her right to free expression, which the court had to balance against the plaintiff’s right to privacy and dignity. The defendant was ordered by the court to delete the defamatory posts and pay the plaintiff’s legal fees.

In Le Roux and Others v Dey 2010 (4) SA 210 (SCA) the applicants were found responsible for defamation because of the circulation of a manipulated image that portrayed the respondent alongside another man in a sexually suggestive position. The liability of the applicants stemmed from the fact that a reasonable person could have made a connection between the respondent and the sexually explicit scenario depicted, potentially causing harm to the respondent’s reputation.

In a case of defamation, the court examines two factors when assessing the conduct of the accused. Firstly, the court considers the ordinary meaning, whether express or implied that the publication would have to a reasonable person of ordinary intelligence. The intent of the accused defamer is irrelevant. Rather, the court considers how a reasonable person would have interpreted the statement or publication in question. Secondly, the court must determine whether the established meaning is defamatory. A statement or publication will be defamatory if it is reasonably expected to harm the reputation of a person in the eyes of an average or reasonable individual. In this case, the court concluded that an average person would link the respondent with the offensive image, thereby subjecting the respondent to mockery and disrespect. Additionally, the court determined that the picture itself was defamatory because its explicit purpose was to damage the respondent’s reputation (Global Freedom of Expression ‘Le Roux v Dey’ (https://globalfreedomofexpression.columbia.edu/cases/le-roux-v-dey-2011/, accessed 22-5-2023)).

Conclusion

The relationship between freedom of expression and cyberbullying is a complex and multifaceted one. While freedom of expression should be protected, it is crucial to acknowledge that it can sometimes be abused and transformed into cyberbullying. Striking a balance requires thoughtful deliberation, legal frameworks, ethical considerations, and a collective effort to foster responsible online behaviour. However, it is evident that the sheer volume of content makes it difficult to respond to every case promptly placing an obligation on society to navigate its own legal landscape by fostering responsible online behaviour.

Muraicho Kelly LLB (UFH) is a Master’s student at North-West University. 

This article was first published in De Rebus in 2023 (Aug) DR 8.

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