The legal implications of cyberbullying on social media

CYBERBULLYING on platforms like TikTok, Facebook, and Instagram is a major legal issue in South Africa. In the realm of digital communication, ensuring the safety and integrity of online interactions have become paramount. Our law combats cybercrimes and protects individuals from online harassment and harmful content. These laws address online contraventions and cyber threats.

Recent cases like the Musa Khawula case, who is a popular online blogger who was arrested and denied bail, addressed the criminal implications of such online behaviours where he was charged with crimen injuria and violations of the Cybercrimes Act for derogatory comments made online.  This case highlighted the effects of online hate speech and the legal consequences of cyberbullying. This behaviour has serious consequences, and the Criminal Procedure Act provides that you can be criminally charged. 

The Cybercrimes Act 19 of 2020 criminalises the distribution of harmful data messages, including those that incite violence or damage to property (Section 14), threaten individuals (Section 15), or disclose intimate images without consent (Section 16). Offenders may face fines or imprisonment ranging from 5 to 15 years.

The Electronic Communications and Transactions Act 25 of 2002 holds individuals accountable for the accuracy and legality of information they publish online. While Internet Service Providers like TikTok and Facebook are generally not liable for user-generated content, they can be held responsible if they are aware of illegal content and fail to act. This is why it is always important to report a post, and to screenshot that as evidence if you need to allege this at a later stage.

The Protection from Harassment Act 17 of 2011 is a legal procedure that enables individuals to obtain protection orders against harassment, including cyberbullying. These orders aim to prevent ongoing harassment by the perpetrators online. Violating such an order can result in arrest and criminal charges. The court can direct the South African Police Service to investigate and assist by identifying the harasser when working with the internet service provider or social media platforms. This order can force social media platforms to disclose a person behind fake profiles.

The Films and Publications Amendment Act 11 of 2019 also regulates the distribution of digital content by restricting harmful material such as revenge porn, child pornography, and hate speech. The Protection of Personal Information Act 4 of 2013 is important in protecting online privacy. It mandates entities to manage personal data responsibly, ensuring that information is collected, processed, and stored carefully. It provides that anyone in control of collecting and storing personal information is prohibited from mishandling such data (digital information).

In the landmark case of Heroldt V Wills 2013, the defendant posted defamatory statements on Facebook, alleging the plaintiff was an unfit parent due to substance abuse. The court ruled in favour of the plaintiff, emphasising that the protection of dignity was more important than a person’s freedom of expression, and the outcome was an order to remove the online posts and to pay compensation.

This case of Isparta v Richter, 2013 established that individuals tagged in defamatory social media posts can be held liable if they do not remove themselves from “tagged” content. The court found both the original poster and the tagged individual were jointly liable for defamation. Thus, South African courts have clarified that freedom of expression does not protect defamatory or harmful online conduct.

If you participate by clicking “like”, being tagged, resharing a post or simply agreeing on certain posts online then such behaviour can result in legal liability if it is considered as hateful, hurtful or if incites harm. Victims have recourse through criminal charges, civil lawsuits, and protection orders if their rights to dignity, privacy, and reputation are disregarded. 

Kelly Jade Reddy is a lawyer. She runs KJR Incorporated and offers advice and tips through her social media platforms such as Kelly.Attorney on TikTok.

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