Twitter. (Duncan Alfreds, Fin24)
Cape Town - While the rise of social media makes it easy to shame people publicly, it could place you at odds with the law, says a legal expert.
"'Shaming' on the internet applies in many different contexts and is prohibited in many ways by SA law depending on the nature of that 'shaming'," technology attorney Russel Luck told Fin24.
An Australian woman recently made a tearful apology for shaming a man on Facebook. She had accused him of being a child predator after he appeared to snap a picture of her young children.
However, it emerged that he had been taking his first selfie in front of a Darth Vader display in a shopping mall.
"In the scenario where the shaming occurred in error then the woman who made those comments could be liable to a delictual action for defamation of the man's character," Luck said, adding that she could very well also face civil damages.
However, the law takes a dim view of malicious shaming.
"Where the 'shaming' amounts to cyber bullying (comments made about a person or to a person) which amount to harassment or hate speech), the 'shamer' could face civil charges in delict and / or criminal charges," Luck explained.
Under South Africa's Protection from Harassment Act (Act No 17 of 2011), the court merely has to see face value of harassment evidence to grant the victim a protection order.
"If the court is satisfied that there is prima facie evidence that the respondent is engaging or has engaged in harassment" the court may issue an interim protection order, the act says, in part.
Shaming people online in SA could land you in jail. (Duncan Alfreds, Fin24)
More serious cyber bullying could be covered under charges of crimen injuria.
"This is a criminal offence for seriously 'shaming' a person to the extent that it damages the integrity of their dignity. (The text-book example is spying on a married woman while she is undressing herself.)" Luck said.
For example, in the US state of California which is experiencing its worst drought in years, many people have posted images of celebrity homes with lush lawns, gardens and swimming pools as a way of shaming those who waste water.
Following the devastating fire on the Table Mountain range recently, a number of people have posted images on Facebook of drivers accused to be throwing lit cigarettes out of their car windows.
There are also examples of social media users taking photographs of children unrestrained in moving vehicles. New regulations introduced by Transport Minister Dipuo Peters now oblige caregivers of young children to ensure that they are restrained in a car seat.
These practices could constitute a violation of privacy and run afoul of the law.
But social media is a global phenomenon, and it would prove difficult to take action against a bully who obfuscates his or her identity on the internet.
"'Shaming' over the internet is sometimes more difficult to prove because 'shamers' hide behind aliases and use fake internet accounts," said Luck.
"ISPs (internet service providers) often respect their internet user’s anonymity even if that user is doing something blatantly wrong (even illegal) through the service provided by that ISP," he added.
Luck was also careful to point out that you could get a court order to force a service provider to make details of accounts available in order to identify the guilty party.
If the shamer is in another country, the process may be a bit more difficult.
"In civil matters where the 'shamer' is located overseas, it’s possible to sue via edictal citation and get permission from SA courts to sue a 'shamer' overseas," said Luck.
But most courts would apply the "doctrine of effectiveness" which implies that the court will only agree to hear a case should the defendant either reside or have assets in the country where the court is located.
"An SA court wouldn’t hear a matter where the 'shamer' was in America and the 'shamer' had no assets in South Africa which could be sold by the Court to pay the victim of the 'shaming' behaviour in a civil case," Luck said.
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