A LEGAL PERSPECTIVE
Cyberbullying is a form of bullying that occurs online through various digital platforms such as social media, instant messaging, and text messaging.
In South Africa, this issue has been gaining more attention in recent years due to the growing use of technology and the internet among young people.
As a result, individuals need to understand the legal implications of cyberbullying and how they can protect themselves and others from its harmful effects.
The starting point is gaining a clear understanding of what constitutes cyberbullying.
The problem, however, is that cybercrime or cyberbullying needs to be defined explicitly in the latest legislation. “Bullying” is” seeking to harm, intimidate, or coerce.”
Legal framework
The legal framework in South Africa provides several avenues for individuals to seek redress for cyberbullying.
The Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) contains provisions prohibiting using electronic communications to harass or defame another person. This was, therefore, primarily targeted against the creator of the media.
The Film and Publications Act 65 of 1996 (“FPA”) also applies to cyberbullying.
The FPA regulates the distribution and display of certain types of material, including harmful content, to children.
Individuals who engage in cyberbullying that targets minors can also be held liable under the law.
This was the first development where the net was cast more comprehensively than on the content creator.
Suppose we shift the focus to the concept of “Harassment”.
In that case, it is defined in the Protection from Harassment Act 17 of 2011 (“Harassment Act”) as:
“means directly or indirectly engaging in conduct that the respondent knows or ought to know-
(a) causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably-
(i) following. watching. pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;
(ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or
(iii) sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to or brought to the attention of, the complainant or a related person; or
(b) amounts to sexual harassment of the complainant or a related person;”
“harm., means any mental, psychological, physical or economic harm”;
The Harassment Act provides for a mechanism akin to the “restraining order” to be sought against a person who perpetrates behaviour constituting harassment.
This is a civil remedy which, if breached, may lead to arrest and criminal sanction.
This was therefore focused on the behaviour of the harasser and the intention of causing harm.
The latest development in South Africa is the Cybercrimes Act 19 of 2020 was recently enacted to help address the issue of cyberbullying.
It provides for the criminalization of various forms of cybercrime, including cyberbullying.
It also includes establishing a specialized cybercrime unit within the South African Police Service (SAPS) to investigate and prosecute cybercrime cases, including cyberbullying.
Section 14 of the Cybercrimes Act deals with a data message that incites property damage or violence.
Section 15 of the Cybercrimes Act provides that a person commits an offence if they, employing an electronic communications service, unlawfully and intentionally disclose a data message, which—
(a) threatens a person with—
(i) damage to property belonging to that person or a related person; or
(ii) violence against that person or a related person; or
(b) threatens a group of persons or any person forming part of, or associated with, that group of persons with—
(i) damage to property belonging to that group of persons or any person forming part of, or associated with, that group of persons; or
(ii) violence against the group of persons or any person forming part of, or associated with, that group of persons,
The Cybercrimes Act casts the net wider onto those who share content that could be harmful.
It is, therefore, no longer about the creator only.
Moreover, the intent is broader than wanting to cause harm. It is about the actual disclosure event which causes harm, threats or indices.
Conclusion
The best way to deal with an event of cyberbullying would depend on the circumstances of the incident. It follows that we need to think carefully about what we forward, share or pass on and no longer communicate, forward or post mindlessly.
The recourse victims may have could include pursuing a complaint with the SAPS, the Film and Publication Board, or the South African Human Rights Commission.
In some cases, they may also take legal action through the civil courts.
Cyberbullying has significant legal implications.
As technology continues to evolve and the internet and digital platforms become more widespread, individuals need to understand cyberbullying laws and regulations and take proactive steps to protect themselves and others.
By N Schoeman-Louw
