Letters to the editor – June 2020

June 1st, 2020
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PO Box 36626, Menlo Park 0102

Docex 82, Pretoria

E-mail: derebus@derebus.org.za

Fax: (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

 

Can victims of revenge pornography rely on POPI’s protection?

I refer to the article by Paula Gabriel ‘Can victims of revenge pornography rely on POPI’s protection?’ 2020 (April) DR 14.

Firstly, the author does not consider the possibility of the communication being entirely out of the scope of the Protection of Personal Information Act 4 of 2013 (POPIA) as a result of it qualifying for the exclusion in terms of s 6(1)(a) of POPIA, which exempts ‘purely personal or household activity’. For example, a man may send naked images of his ex-girlfriend to his friends. As this is outside of any commercial activity he engages in, one would argue that this is a ‘purely personal’ activity as defined in POPIA and so this would be entirely excluded from the ambit of POPIA.

Secondly, revenge porn is explicitly dealt with in s 19 of the Cybercrimes Bill B6 of 2017 (www.esselaar.co.za) where the act referred to in the above example would result in a conviction of up to three years of imprisonment and/or a fine. This section also criminalises a situation where the friends who receive the image in the above example forward it to their contacts. This Cybercrimes Bill is currently in its final stages and was likely to be enacted very soon, however, due to the national lockdown it has been delayed. Once enacted, I would submit that this would be the more appropriate path to take in the case of revenge porn.

Paul Esselaar LLB (Rhodes) LLM (Electronic Law) (UCT)
is a legal practitioner at Esselaar Attorneys in Cape Town.

 

Reply to Mr Esselaar

I would like to thank Mr Esselaar for taking the time to reply to my article: ‘Can victims of revenge pornography rely on POPI’s protection?’ 2020 (April) DR 14.

Mr Esselaar’s point is well made that there may indeed be instances where an act of distributing revenge pornography falls within the household exemption, as provided for in s 6 of the Protection of Personal Information Act 4 of 2013 (POPIA). However, I would argue that a perpetrator of revenge pornography should not be able to rely on the household exemption for protection in cases where his behaviour is not only contrary to the boni mores of society, but where his behaviour is also criminalised by the Cybercrimes Bill B6 of 2017, as well as the Films and Publications Amendment Act 11 of 2019.

It could also be argued that it makes a difference whether the man in Mr Esselaar’s example shares the photo of his girlfriend with just a few of his friends, or whether he posts it on an open social network. It is interesting to note that the European Court of Justice in its Bodil Lindqvist v Åklagarkammaren i Jönköping Case C-101/01 and Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy Case C-73/07 judgments recommended that a distinction should be made between data that is disseminated to a finite or an indefinite number of individuals.

Secondly, the criminalisation of revenge pornography in the Cybercrimes Amendment Bill is certainly a positive legal development and is similar to the protection offered to victims of revenge pornography in the Films and Publications Amendment Act. Once enacted, both will offer desirable courses of action. However, my concern is court processes take time, and that by the time a perpetrator is convicted the reputational damage to the victim is done. The point of my article was thus to ask whether POPIA might be able to offer more immediate relief, not instead of the other available remedies, but in addition to them.

Paula Gabriel BMus MMus (UCT)
LLB (Unisa) is an advocate in Cape Town.

 

Level 4: What does this mean for the legal profession?

The South African Constitution has a general limitation clause (s 36) that states that rights may be limited by a law of general application that is ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’.

What is the level 4 lockdown? Is it a limitation of rights or suspension of civilian rights and habeas corpus? To the best of my knowledge, governments can impose such harsh measures under a state of emergency, which has not been declared. Lockdown is unconstitutional as it is cruel to impose an unusual punishment that leads to the suffering, pain, or humiliation it inflicts on the persons subjected to the sanction. The precise definition varies by jurisdiction, but typically includes punishments that are arbitrary, unnecessary and overly severe compared to the crime, and not generally acceptable in society.

The South African government is a member of the International Covenant on Civil and Political Rights (ICCPR) and, it is prevented by that membership, from suspending non-derogable rights of citizens. Non-derogable rights are listed in art 4 of the ICCPR and art 5, 6 and 7 includes the right to life, the right to freedom from arbitrary deprivation of liberty, slavery, torture, and ill-treatment. Regimes often declare a state of emergency, which is prolonged indefinitely for the life of the regime, or for an extended period of time so that derogations can be used to override the human rights of the country’s citizens.

Tim Singiswa Dip Multimedia Development Dip Legal Studies Dip Business and
Legal Studies (Alison University) is a business owner in Cape Town.

 

LPC’s disturbing silence regarding lockdown and financial implications to legal firms

I want to express my concern at the disturbing silence from both the Legal Practice Council (LPC), as well as the Northwest Provincial Council during the lockdown, specifically their absence from negotiations for financial assistance of small and medium law firms.

We see in the media that the retail sector received relief from rent, and the manufacturing and some other sectors are to get special investment plan assistance through government funding. Yet, we do not hear what our governing councils are negotiating for us, the legal profession. There is no relief as to rent, other overheads, no increased fees, and no appeal against the judgment in Mpumalanga (Administrator of Dr JS Moroka Municipality and Others v Kubheka (MM) (unreported case no 1170/20, 3-4-2020) (Brauckmann AJ)) regarding the forfeiting of fees (see Kgomotso Ramotsho ‘Legal practitioners traveling with no proper permits during lockdown may face possible criminal prosecution’ 2020 (May) DR 26).

Will it be possible to hear from the LPC why they are seemingly not negotiating anything for legal practitioners? Why no special regulations for increased fees? Why has there, for example, been no statement that our membership fees should be decreased?

Bertus J van Vuuren
legal practitioner.

 

  • De Rebus afforded the Legal Practice Council a right of reply. No reply was received at the time of going to print. – Editor

 

This article was first published in De Rebus in 2020 (June) DR 4.

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