Can POPIA Act Save Me from Revenge Porn?
We live in a digital world where the personal details of our lives have become increasingly open to public scrutiny – and exploitation. For many, revenge porn is a matter of grave concern, the consequence of a hostile ex or even a hacker illegally publishing highly personal images or videos that do not belong in the public domain.
The impact of revenge porn can be devastating for a victim. Socially, it can affect careers, friendships, social reputation, and even lead to further criminal exploitation, such as attempts at blackmail. And on a personal level, the consequences can be even more severe – including the risk of sexual victimisation, emotional and psychological injury, depression, and even suicide ideation in some cases.
So, can the POPI Act and other related legislation provide a measure of protection against revenge porn? Fortunately, the answer is yes.
What is Revenge Porn?
Put simply, revenge pornography is generally defined as the non-consensual sharing of explicit photographs or videos. This is often perpetrated by an ex-partner, with the intention of humiliating or shaming the subject of that content.
Revenge porn is most commonly distributed through an electronic medium like the internet – including pornographic websites - and social media networking sites or chat groups. The definition of revenge porn also extends to the act of Photoshopping or manipulating images or videos in a manner that depicts the victim in a sexual or pornographic manner and then sharing that content with the pretence that it is depicted on the picture or the video.
Notably, although the exchange of explicit content amongst adults is permitted, the publication of that content without the subject’s permission is unlawful. And in such cases, victims may lay criminal charges against anyone who distributes or shares revenge porn content on social media, in text messages, or via any electronic communication - including uploading such material to pornographic websites.
Is There Existing Legislation That Criminalises Revenge Porn?
As internet tools and platforms evolve, so legislation has had to be enacted to keep pace with technological developments and offer legal recourse to those who may be affected.
The Film and Publication Amendment Act 11 of 2019
The Film and Publication Amendment Act 11 of 2019 (FPAA) came into effect in 2022, and now provides for the criminalisation of revenge porn. In terms of the FPAA, anyone who is charged and found guilty of revenge porn could face penalties which include:
- A fine of up to R150 000 (one hundred and fifty thousand rands) and / or two years’ imprisonment, if the victim cannot be identified in the content.
- If the victim can be identified in any way, including but not limited to their face, distinct voice and / or their personal information included in the revenge porn content, the perpetrator could pay a fine of up to R300 000 (three hundred thousand rand) and/or face up to four years in prison.
The Cybercrimes Act 19 of 2020
The Cybercrimes Act 19 of 2020 is an alternative legal remedy for victims of revenge porn. Again, this is specifically directed toward instances wherein perpetrators unlawfully and intentionally disclose a data message of an intimate image of the subject displayed, who retains a reasonable expectation of privacy, without their consent.
The Cybercrimes Act defines the term ‘intimate image’ as a depiction of a person, real or simulated, in which such person is, inter alia, nude, or wherein their genital organs are displayed. Perpetrators are punishable by either a fine which has not yet been determined, and/or face imprisonment for a period not exceeding 3 years.
The Law and Internet Hosting Services
In addition to the criminal sanction, the Cybercrimes Act also provides victims of revenge porn with interim relief pending the finalisation of criminal proceedings.
Victims may apply for a protection order under section 20 of the Cybercrimes Act to prohibit anyone from disclosing or further disclosing the “data message” relating to the revenge porn charge. Furthermore, an order for the removal or limiting access of the sexually explicit content may be made against any electronic communication service provider whose electronic communication was used to host or disclose the data message related to the charge of revenge porn.
Legally speaking, the ‘right to be forgotten’ is the right of data subjects (people to whom personal information relates) to have responsible parties (the people who hold their personal information) delete their personal data from their database, servers and from the world wide web. These responsible parties include natural persons as well as organisations.
This entitlement gives victims the right to demand that search engines, such as Google, not display results containing old information or content about a person where the privacy rights outweigh the public interest of having continued access to that content and information.
Does POPIA Also Confer the Same Protection?
Although the Protection of Personal Information Act 4 of 2013 (POPIA) does not explicitly grant data subjects a right to be forgotten, we can interpret section 24 of POPIA to give at least a limited effect to this right.
Section 24 of POPIA empowers data subjects to instruct responsible parties to delete personal information in their possession - or under their control - that is inaccurate, irrelevant, excessive, out of date, incomplete, misleading, or obtained unlawfully. It also requires that responsible parties delete or destroy records that should no longer be retained.
So, this provision provides revenge porn victims with practical means to have their leaked nudes and explicit content and their names deleted from any social media platforms, websites and search engines that continue to host this type of content. In turn, this ensures that revenge porn victims retain a digital footprint that presents them in their best light when their names are searched on the internet.
If the responsible parties refuse to delete the victim’s personal information, the victim may then submit a claim to the Information Regulator.
Can a Civil Claim be Brought Against Perpetrators of Revenge Porn?
Fortunately, victims of revenge porn do not have to rely solely on criminal sanctions to obtain redress. They also have the option of pursuing civil remedies insofar justice is concerned.
Firstly, there is the issue of crimen injuria - the legal term that broadly refers to the wilful impairment or violation of a person’s dignity and privacy by another party. A victim of revenge porn may institute civil action for damages on the basis that such distribution of sexually explicit content without their consent constitutes an act of crimen injuria.
In addition, a victim of revenge porn can claim compensation for non-patrimonial losses sustained as a result of the wrongful, culpable act of another which caused injury to the victim’s personality rights. Personality rights refer to an individual’s right to control the commercial use of their identity, which in this case would clearly be infringed.
Depending on the circumstances of the creation of the content, the victim may also have a claim in terms of the Copyright Act 98 of 1978, which provides for both criminal and civil sanctions against perpetrators.
Have You Been a Victim of Revenge Porn?
If you’ve been a victim of revenge porn and would like to seek professional legal advice in an environment that is supportive and understanding of your situation, please contact the Family Law Department at Witz Inc today.
Our experienced, empathetic attorneys will assist you in ensuring that the correct steps are taken to regain your privacy and provide you with the legal protection you deserve.
Please note: The information contained in this article is for general guidance regarding matters of topical interest and does not constitute legal advice.
_________________________________
LINK INDEX
https://www.pesi.co.uk/blog/2021/july/the-impact-of-revenge-porn
https://dig.watch/topics/right-to-be-forgotten
Protection of Personal Information Act 4 of 2013
https://www.witzinc.co.za/post/popi-act-or-protection-of-personal-information-act
https://witzinc.co.za/expertise/family-law-attorneys-in-south-africa-l-witz-inc/