Thursday, 3 October 2013

Cyber Bullying

A modern phenomenon that is increasingly prevalent in todays technologically sophisticated society is a nuanced form of harassment and intimidation known as cyber bullying.  It has lead directly to several teenage suicides and recently the suicide of a 12-year-old child.

Cyber bullying can be formally defined as the use of digital technology or technological devices (such as the Internet, mobile phones or online games by a person or group of persons) to threaten, harass or humiliate another person[1].

The typical forums currently used are Facebook, Twitter, Instagram, WhatsApp, BBM and a variety of blogs and Internet websites.  The victim is typically harassed over a period of time and very often feels helpless, depressed and altogether unhappy.  There are remedies available, some with little to no cost at all, others, which may involve a court application and cost significant amounts of money.

In South African law, Parliament recently promulgated the Protection from Harassment Act 17 of 2011 (“the PFHA Act”).  Its primary responsibility is to afford victims of harassment an effective remedy against such behavior.

In addition, in South African law, the Domestic Violence Act 116 of 1998 affords protection to a person harassed by a partner, girlfriend or spouse.  Accordingly, the legal framework allows any victim, in any situation, to apply to court to prevent or stop the abuse.  Court proceedings are, however, costly.  So, what can be done without recourse to the legal process?

For purposes of debate, lets assume harassment occurs across social media and internet blogs.
All social media platforms have mechanisms to report violations or breaches of the terms of use.  Facebook, for example, has a specific page to report violations.  Further, there is a “how-to” guide insofar as harassment is concerned.   One can even report a violation without holding an account.

Similarly, Google has a facility to remove content that is in breach of its terms of use.  A cursory Google search will reveal similar pages for all social media platforms and internet blog hosts.

In practice however, most of the methods above will fail unless there is an overt act or acts of harassment, or a plain breach of the terms of use.  In most situations, unfortunately, the harassment is nuanced and subtle which means that the likes of Facebook will not act, even when threatened via a legal letter of demand.

Where does that leave the victim of harassment?  How do I stop cyber bullying?

Firstly, it is always in all parties best interests to attempt to resolve these sorts of disputes amicably. This is often not possible, so the next step may be to formally request the person to stop the harassing and intimidating behavior. 

If discussion and a letter of demand have no effect, which is typically the case, the victim can apply to court on an urgent basis (and without having to serve papers on the accused) for interim relief in terms of the PFHA Act or the Domestic Violence Act, depending on the circumstances and relationship between the parties.

Both applications are similar, requiring the victim to make out a prima facie case showing the court that harassment has occurred and will likely continue occurring, which harassment will cause the victim harm – either emotional, physical or economic.

These matters are heard in camera, which essentially means behind closed doors and in a Magistrate’s chambers.  A Magistrate will consider the papers before him or her and usually ask the victim salient questions about the accused, the harassment and how it takes place.  Once satisfied, the court will grant an interim protection order on specific terms – e.g.: Mr. XYZ is prohibited from communicating with the Mrs. ABC via social media and Internet websites, either directly or indirectly.

The orders will differ depending on the harassment and usually specifically prohibit certain conduct.  As mentioned, this is done without notice to the accused but once the interim order is granted (or even if it is rejected), the court papers are taken to a police station and a member of the SAPS (or a relevant Sheriff of the court) serves the order (with the court papers) on the accused.

Thereafter, a further hearing will be scheduled (normally two weeks from the date the interim order is issued) where the accused has a chance to tell their side of the story and defend themselves if required. 

At this hearing, essentially, the court decides whether to make the order final or whether to dismiss it. If the harassment continues while the interim order is in effect, or continues after the order is made final, the victim can obtain an arrest warrant for the accused.

Think long and hard before going down this road.  It often only brings a pyrrhic victory.

[1] See: S Cassim, “Formulating adequate legislation to address cyber -bullying: Has the law kept pace with advancing technology?” 2013 SACJ 1.  Also, see: