In South Africa, the rights and dignity of the individual has been expanded in line with international norms on the scourge that has come to be known as “revenge porn”.

The Films and Publications Amendment Act of 2019 has criminalised knowingly distributing private images and footage of sexual and/or compromising nature of a person without their consent to cause harm.

What does “criminalised” mean? Well, if the individual can be clearly identified in the image and/or footage the culprit of the distribution without consent is staring prison time in the face of 4 years and a fine of up to R 300 000.00. The same applies if the individual in the image or footage cannot be identified clearly but a 2-year prison sentence or a R 150 000.00 fine applies to such instances.

The criminal, moral and common-sense position of such transgressions now reflect each other and distributing images and footage of a sexual and/or compromising nature of an individual without their consent is absolutely no-go territory.

If you are a victim of revenge porn the procedure starts by approaching your local South African Police Branch to assist with opening and investigating the case and bringing the culprit into the light of criminal prosecution.

The Films and Publications Amendment Act of 2019 also complements and integrates with the Protection from Harassment Act 1997 as too often the threat of revenge porn overlaps with harassment.

Harassment under the Act includes both direct and indirect conduct that either causes harm or that inspires the person complaining of harassment (“the complainant”) to reasonably believe that harm may be caused. Such conduct includes following, watching, pursuing or accosting of the complainant or someone in a close relationship with the complainant such as a spouse or family member.

Harassment also includes contact through verbal communication aimed at the complainant. The Act also recognises electronic communication that causes harm or makes the complainant feel in danger of being harmed as harassment. The Act mentions several forms of written communication as capable of being contact for the purposes of harassment, such as letters, packages and e-mails. It also includes sexual harassment, which means “any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome”.

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Such sexual attention includes unwelcome behaviour, suggestions, messages or remarks of a sexual nature that have the effect of “offending, intimidating or humiliating” the complainant or a person who has a close relationship with the complainant.

Entrenching a legal position protecting and expanding on the dignity of individuals is a move in the right direction and the quote by Louis D. Brandeis holds true that “If we desire respect for the law, we must first make the law respectable”

Written by H Bouwer

Associate – Cavanagh and Richards Attorneys