Cyberbullying - Part 2

In our previous article we spoke about what cyberbullying is and what a victim of cyberbullying can do if they find themselves in an untenable situation.

And this is important because according to the Cadbury Joy Vault –

“51% of participating South African parents said their children had been victims of cyberbullying”.

And that’s a lot of young minds that become prone to mental health issues due to forms of online abuse. You see it’s the anonymity that online platforms provide users - so much so - that they feel like they can say whatever they like about someone else without fear of retribution.

The question on everyone’s minds is surely – how can we protect ourselves and our children from cyberbullying?

Is there any legislation that offers protection against cyberbullying?

The short answer – yes!

South Africa has a myriad of legislative frameworks which aim to regulate bullying, focusing primarily on the prevention of same such as -

The Children's Act 38 of 2005

Section 2 of the Children’s Act gives effect to the constitutional rights of children, such as the protection against maltreatment, abuse, and neglect and very importantly, it provides for the promotion of the best interests of the child. This Act also aims at providing structures and means for promoting and monitoring the physical, psychological, intellectual, emotional, and social development of children, while protecting them from physical and emotional harm.

Section 14 of the Children's Act is also very important. This section provides every child with the right to bring, and to be assisted in bringing, a matter to court.

However, the Children’s Act must be read together with our Constitution which at Section 7(2) compels the state to respect, protect and promote the rights of all citizens. To fully comply with section 7(2) of the Constitution and section 14 of the Children's Act, procedures must be in place to facilitate upholding the rules of natural justice, which have a bearing on the rights of the victims and perpetrators of bullying.

The Child Justice Act 75 of 2008

This Act recognises the criminal element of bullying and provides a separate criminal justice system for children – with a focus on restorative justice (rehabilitation).

Children from 11 and up to 14 years of age have criminal capacity and the onus to prove criminal capacity on the part of the child accused of having committed a crime, rests with the State. Children above 14 years of age have criminal capacity unless otherwise proven by the accused child.

In every matter concerning a child, his or her interests are of primary importance. The detention of a child should only be considered as a last resort and then only for the shortest possible period. If detained, he or she must be kept separately from other detained persons over the age of 18 years, to be held in the same holding cells as his/her own sex, as well as the right to be treated and kept in conditions that are suitable for his or her age.

The Protection from Harassment Act 71 of 2011

Harassment is defined under this Act as -

“directly or indirectly engaging in conduct that the respondent knows or ought to know- (a) causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably-

(i) following. watching. pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies, or happens to be;

(ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or

(iii) sending, delivering, or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to, or brought to the attention of, the complainant or a related person; or

(b) amounts to sexual harassment of the complainant or a related person;”

harm., means any mental, psychological, physical, or economic harm”.

In our previous article which dealt with what cyberbullying is, one of the things a victim of cyberbullying can do is to obtain a protection order against harassment. This is achieved through application of this Act which provides the procedure to obtain a protection order (similar to a restraining order) against a person who perpetrates behaviour constituting harassment. This is a civil remedy which, if breached, may lead to arrest and criminal sanction.

The Electronic Communications and Transactions Act 25 of 2002

Contains provisions prohibiting using electronic communications to harass or defame another person.

The Film and Publications Act 65 of 1996

Regulates the distribution and display of certain types of material, including harmful content, to children. Individuals who engage in cyberbullying and target minors can also be held liable under the law.

The Cybercrimes Act 19 of 2020

The Cyber-Crimes Act was signed into law in December 2021 and forms a crucial part of South Africa's growing legislative framework on data management and the safeguarding against cyberbullying.

This Act affects all individuals and organisations in South Africa who use the internet for communication or the processing of data. And in today’s times, that includes everyone.

While a 'cybercrime' is not defined by the Cybercrimes Act, there is a list of actions which would amount to a cybercrime. They are included in Chapter 2, Part I - Cybercrimes (at Sec 2 - Sec 12) and are as follows –

1. Unlawful access;
2. Unlawful interception of data;
3. Unlawful acts in respect of software or hardware tool;
4. Unlawful interference with data or computer program;
5. Unlawful interference with computer data storage medium or computer system;
6. Unlawful acquisition, possession, provision, receipt or use of password, access code or similar data or device;
7. Cyber fraud;
8. Cyber forgery and uttering;
9. Cyber extortion;
10. Aggravated offences, and
11. Theft of incorporeal property.

The Cyber-Crimes Act also sets out three actions which could be considered malicious communication (at Sec 14 – Sec 16) –

1. Data message which incites damage to property or violence;
2. Data message which threatens persons with damage to property or violence, and
3. Disclosure of data message of intimate image.

Section 14 of the Cybercrimes Act deals with a data message that incites property damage or violence.

Section 15 of the Cybercrimes Act provides that a person commits an offence if they, employing an electronic communications service, unlawfully and intentionally disclose a data message, which—

(a) threatens a person with—

(i) damage to property belonging to that person or a related person; or

(ii) violence against that person or a related person; or

(b) threatens a group of persons or any person forming part of, or associated with, that group of persons with—

(i) damage to property belonging to that group of persons or any person forming part of, or associated with, that group of persons; or

(ii) violence against the group of persons or any person forming part of, or associated with, that group of persons,

In addition, the Cybercrimes Act (at Sec 18) sets out the competent verdicts and (at Sec 19) appropriate sentencing (arising from the competent verdict).

It’s important to note that the Cyber-Crimes Act extends the ordinary application of jurisdiction. Which makes perfect sense. Because jurisdiction and “boarders” may not exist in the cyber world.

Offences can and have been carried out beyond the borders of South Africa. The Cyber-Crimes Act recognises any acts amounting to a cybercrime, which is targeted at South Africa, and is therefore deemed to have been committed in South Africa. Should the offender be found in South Africa or extradited to South Africa, Section 24 of the Cybercrimes Act will apply –

“(2) Any act alleged to constitute an offence referred to in Part I or Part II of Chapter 2 and which is committed outside the Republic by a person other than a person contemplated in subsection (1), must, regardless of whether or not the act constitutes an offence at the place of its commission, be deemed to have been committed in the Republic if—

(a) that person is extradited to the Republic; or

(b) that person—

(i) is found to be in the Republic; and

(ii) is for one or other reason not extradited by the Republic or if there is no application to extradite the person”.

The importance of the Cyber-Crimes Act cannot be underestimated. But it is equally important to remember how it interacts with the Protection of Personal Information Act 4 of 2013 (POPIA).

The Cybercrimes Act is linked to POPIA, which safeguards the integrity and sensitivity of personal and private information. Why? Because when there’s a cybercrime investigation, experts will often require access to information from an organisation and/or private person’s devices to give context to a matter they are investigating. This can and usually does include personal information.

POPIA must therefore be considered when undertaking any investigation under the Cyber-Crimes Act to avoid any legal repercussions that may arise.  

This can be a tough a complex problem to solve. If you or someone close to you has fallen victim to cyberbullying, we implore you to get in touch with us to see how we can be of assistance.

If fact, if you have any questions on the information we have set out above or have a personal issue which you want to discuss with us, please don’t hesitate to contact us at NVDB Attorneys.

We are a law firm that considers honesty to be core to our business. We are a law firm that will provide you with clear advice and smart strategies - always keeping your best interests at heart!

Helpful organisations

ChildLine South Africa which provides assistance to children who are victims of any type of abuse/bullying/victimisation and are contactable on 08000 5000 and at www.childlinesa.org.za

FAMSA has offices nationwide and gives counselling to the abused and their families. To find your nearest FAMSA branch, call 011 975 7101, email national@famsa.org.za or visit their website www.famsa.org.za.

Through #SayItLikeYouMeanIt, Cadbury provides cyberbullying victims with access to a chatline where they will be directed through a series of questions and based on their responses get guidance on how to deal with the cyberbullying situation. For severe cases, there will also be an option to receive further help from SaveTNet, an independent safety net for cybercrime victims who require assistance from experts.

Simply save 061 979 7217 to your contacts and send a WhatsApp message with the word HELP to activate the conversation (Cadbury Joy Vault).