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Cyberbullying is a form of bullying that occurs through digital devices like cell phones, computers, and tablets. It involves using electronic communication to repeatedly or deliberately harm, intimidate, or coerce someone. While traditional bullying often involves face-to-face interaction, cyberbullying is unique because it can:

  • Be persistent: It can happen 24/7, making it difficult for victims to find relief, even at home.
  • Be anonymous: Perpetrators can often hide their identity, making it harder to hold them accountable.
  • Have a wider audience: Harmful content can spread quickly and widely, becoming permanent online.
  • Feel less real to the bully: The physical distance can make it easier for bullies to inflict harm without seeing the immediate emotional impact.

Yes, cyberbullying can be a crime in South Africa, especially since the Cybercrimes Act 19 of 2020 partially came into effect on 1 December 2021. This Act criminalises various forms of cybercrime, including those directly related to cyberbullying, such as:

  • Threatening violence or damage to property via electronic messages (Section 14 & 15).
  • Unlawfully disclosing intimate images without consent (Section 16).
  • Additionally, other laws can apply:
  • Electronic Communications and Transactions Act (ECTA): Prohibits using electronic communications to harass or defame.
  • Protection from Harassment Act: Allows for obtaining a protection order against harassment, which can include cyber harassment.
  • Criminal offences: Actions like crimen injuria (impairing dignity), criminal defamation, and sexual exploitation/grooming can be prosecuted if they occur online.
     

Cyberbullying can take many forms, including:

  • Sending mean, hurtful, or threatening text messages or emails.
  • Spreading lies or rumours about someone on social media.
  • Posting or sharing embarrassing pictures or videos without consent (e.g., "revenge porn").
  • Creating fake profiles to impersonate someone and send nasty messages.
  • Excluding someone from online groups or conversations.
  • Harassing or stalking someone online.
  • "Doxxing" - sharing someone's personal details (like their home address or phone number) publicly without their permission.
  • Inciting violence or damage to property through electronic messages.

Look out for changes in behaviour and mood, which can include:

  • Becoming upset, sad, or unusually quiet after using their phone or the internet.
  • Emotional withdrawal or secrecy about online activities.
  • Sudden disinterest in social activities, school, or hobbies they once enjoyed.
  • Reluctance to go to school or avoid specific classes.
  • Changes in mood, behaviour, sleep patterns, or appetite.
  • Increased anxiety when receiving texts, emails, or using social media.
  • Avoiding discussions about their online life.
  • Physical symptoms like stomach aches or headaches, sometimes used as an excuse to avoid situations.

Yes. In South Africa, a child's best interests are paramount in every matter concerning them, as per Section 28(2) of the Constitution. This means that a child's right to privacy can be limited if it's in their best interest. Parents have a legal and ethical duty to protect their children, which includes supervising their online activities to safeguard them from harm. This can involve educating them, observing their behaviour, proactive monitoring, and using parental control software.

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Cyberbullying

Understanding Cyberbullying & Your Legal Options

In today's digital age, where social media and instant messaging are integral to our daily lives, a darker side has emerged: cyberbullying. This insidious form of bullying, perpetrated through electronic devices and online platforms, can have devastating consequences. At VDM Attorneys, we understand the profound impact cyberbullying can have on individuals, especially children, and we're here to help you navigate the legal landscape in South Africa to seek redress.

What is Cyberbullying?

While South African legislation doesn't offer a single, explicit definition of "cyberbullying," it generally refers to seeking to harm, intimidate, or coerce another person through digital means. It encompasses a wide range of harmful online behaviours
Such As:
  • Posting offensive images or comments on social media.
  • Sending threatening text messages or emails.
  • Spreading false rumours online.
  • Sharing embarrassing pictures or videos without consent.
  • Creating fake profiles to impersonate someone.
  • Harassing or stalking someone online.
  • "Doxxing" – sharing someone's personal details (like their address or phone number) publicly.

Cyberbullying's pervasive nature means it can affect victims almost constantly, across multiple platforms, and the harmful content can remain online indefinitely, impacting a person's digital footprint.

South Africa's Legal Framework Against Cyberbullying

Historically, victims of cyberbullying in South Africa had to rely on a combination of existing laws. However, with the recent implementation of the Cybercrimes Act 19 of 2020, our legal framework has significantly strengthened.

Here's a breakdown of the key legislation that can offer protection and recourse:

The Electronic Communications and Transactions Act 25 of 2002 (ECTA)

ECTA was an early step, prohibiting the use of electronic communications to harass or defame another person. It primarily targeted the creator of the harmful content.

The Film and Publications Act 65 of 1996 (FPA)

The FPA regulates the distribution of certain types of material, including harmful content, particularly to children. This Act broadened the scope beyond just the content creator, allowing for action against individuals who distribute or display harmful material, especially when targeting minors.

The Protection from Harassment Act 17 of 2011

This crucial Act focuses on the concept of harassment, defining it broadly to include direct or indirect conduct that the perpetrator knows, or ought to know, causes harm or inspires a reasonable belief that harm may be caused. This includes:

  • Unreasonably following, watching, pursuing, or accosting someone.
  • Engaging in verbal, electronic, or any other communication aimed at causing harm.
  • Sending, delivering, or causing the delivery of unwanted communications or objects.

"Harm" in this context refers to any mental, psychological, physical, or economic harm. This Act provides a mechanism similar to a restraining order, allowing victims to seek a protection order against the person perpetrating the harassment. A breach of this order can lead to arrest and criminal sanctions. This Act shifted the focus to the behaviour of the harasser and their intent to cause harm.

The Cybercrimes Act 19 of 2020

This Act is a monumental development in South Africa's fight against cyberbullying. While it was signed into law on May 26, 2021, certain key sections became operational on December 1, 2021. This means that many cybercrimes, including those associated with cyberbullying, are now directly criminalised.

Specifically, the Cybercrimes Act:

  • Criminalises offences related to data messages:
    • Section 14: Deals with data messages that incite damage to property or violence.
    • Section 15: Makes it an offence to unlawfully and intentionally disclose a data message via an electronic communication service that threatens a person or group with violence or damage to property.
    • Section 16: Addresses the unlawful and intentional disclosure of an intimate image of an identifiable person without their consent. An "intimate image" includes nude images, images of private parts, or even edited images where a person is identifiable.

The Cybercrimes Act casts a wider net, focusing not just on the content creator but also on those who share content that could be harmful. The intent is broader than merely wanting to cause harm; it's about the actual disclosure event which causes harm, threats, or incitement. A person found guilty of these cybercrimes may face a fine and/or imprisonment not exceeding three years.

Furthermore, the Act allows victims to apply to a Magistrate's Court for a protection order to prevent further cybercrimes. A Magistrate can also order an electronic service provider to remove or disable access to the harmful message or image.

Legal Recourse for Cyberbullying Victims

If you or your child are a victim of cyberbullying, you have several avenues for legal recourse. The best approach will depend on the specific circumstances of the incident.

1. Pursuing a Criminal Complaint with SAPS
The Cybercrimes Act provides direct criminal consequences for many forms of cyberbullying. You can lay charges at your nearest police station for offences like:

  • Electronic messages or social media posts that incite or threaten violence or property damage.
  • The disclosure of intimate images without consent.
  • Crimen Injuria: Where the dignity of the victim is intentionally and unlawfully impaired (e.g., being humiliated with offensive language).
  • Criminal Defamation: The intentional and unlawful publication of matter concerning another person that damages their reputation.
  • Sexual Exploitation and Grooming: Threats made to obtain something, such as pornographic images.

The Act also establishes specialized cybercrime units within the South African Police Service (SAPS) to investigate and prosecute these cases.

2. Engaging with the Film and Publication Board (FPB)
The FPB can be approached, particularly in cases involving harmful content, especially if it targets minors. They regulate the distribution and display of such material.

3. Seeking Assistance from the South African Human Rights Commission (SAHRC)
The SAHRC can investigate complaints where cyberbullying infringes on an individual's human rights, such as their right to dignity or privacy.

4. Taking Legal Action Through the Civil Courts
Beyond criminal charges, victims can pursue civil litigation for damages. This can include:

  • Claims for damages as a result of financial loss or emotional distress. For example, if your reputation is severely damaged by defamatory content, leading to a loss of income, you may have a claim.
  • Seeking a Protection Order for Cyber Harassment: Under the Protection from Harassment Act, you can apply for a protection order against the perpetrator, which legally compels them to cease the harassing behaviour.
  • Mandatory Interdict: This court order can mandate the cyberbully to remove or block any harmful or threatening content on all platforms where it was posted and refrain from such conduct in the future.
  • Prohibitory Interdict: This order prohibits the cyberbully from continuing their harassment or engaging in any further acts of bullying.
  • Civil Suits for Damages (Actio Iniuriarum/Actio Legis Aquiliae): For injury to personality, infringement of dignity, or monetary losses.

Special Considerations for Children

The Cybercrimes Act also impacts how cyberbullying cases involving children are handled under the Child Justice Act 75 of 2008. While imprisonment for children between 10 and 18 is possible, it's only as a last resort and for the shortest period. Parents can institute criminal charges on behalf of their child. If the perpetrator is under 10 and cannot be held criminally liable, parents can, in some instances, institute a criminal charge against the perpetrator's parents.

How VDM Attorneys Can Help

Dealing with cyberbullying can be emotionally taxing and legally complex. At VDM Attorneys, we are committed to providing comprehensive legal support to victims. Our services include:

  • Expert Legal Advice: We'll provide you with a clear understanding of your rights and the legal options available based on your specific situation.
  • Evidence Collection & Preservation: We'll guide you on how to effectively document cyberbullying incidents, including taking screenshots, saving messages, and preserving digital evidence, which is crucial for any legal action.
  • Strategy Development: We'll help you develop a tailored strategy, whether it involves pursuing criminal charges, seeking a protection order, or initiating civil litigation for damages.
  • Representation in Court: Our experienced legal team will represent you in all necessary legal proceedings, from laying charges with SAPS to litigating in civil courts.
  • Liaison with Authorities: We can assist in liaising with the SAPS, the Film and Publication Board, or the South African Human Rights Commission on your behalf.
  • Engaging with Electronic Service Providers: We can help you navigate the process of getting harmful content removed or disabled by social media platforms or internet service providers.

Taking Proactive Steps

Beyond legal recourse, it's vital to be proactive in preventing and addressing cyberbullying:

  • Document Everything: Always save evidence of cyberbullying. Take screenshots of posts, text messages, or images. Do not delete emails or text messages related to the bullying.
  • Don't Respond: Engaging with a cyberbully often escalates the situation. Do not respond to hurtful or untrue messages.
  • Report to a Trusted Adult: If you or your child are targeted, report the incidents to a trusted adult, such as a family member, teacher, or school counsellor.
  • Block and Report: Block the cyberbully's email address, phone number, and social media contacts. Report their activities to the relevant internet service provider (ISP) or social media platform.
  • Educate and Monitor: Parents should educate children about online dangers, monitor their online activities, and maintain open communication channels.

Do you have evidence of cyberbullying and need guidance on your next steps?

Cyberbullying has significant legal implications, and as technology continues to evolve, understanding your rights and options is paramount. If you or someone you know is a victim of cyberbullying, don't suffer in silence. Contact VDM Attorneys today for a confidential consultation. We are here to help you regain control and seek justice.