CYBER BULLYING AND ONLINE HARASSMENT

Last week FRANK MORGAN ATTORNEYS got the following query on this subject:

“About three weeks ago a man started sending me inappropriate e-mails and posting lewd and suggestive comments and messages on my Facebook and Google plus pages. I’ve tried blocking the person and telling him to stop, but he keeps changing his email address and user profile and keeps coming back. I am at my wit's end and don’t even want to look at my phone or computer anymore. Is there anything I can do?”

Social media harassment has been on the rise with victims suffering at the hands of unknown harassers hiding facelessly behind an electronic façade from where they do their dirty work; often changing their online persona as and when necessary to continue harassing their victims and evade identification. Given that the harasser is unidentifiable, victims are unsure as to what they can do to stop the offending action.

The good news is that victims are not without recourse. In 2013 the Protection from Harassment Act (“PHA”) came into operation. The PHA seeks to assist victims of harassment from known and unknown harassers.

The PHA definition of harassment is very wide and includes amongst other things, “directly or indirectly engaging in conduct that causes harm or inspires the reasonable belief that harm may be caused to the victim or a related person through engaging in verbal, electronic or any other communication, irrespective of whether or not a conversation ensues; the sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the victim or a related person; or conduct which amounts to sexual harassment.”

THIS DEFINITION WILL THUS INCLUDE THE CYBERBULLYING AND ONLINE HARASSMENT AS DESCRIBED BY OUR ABOVE CLIENT.

The PHA provides for the issuing of a protection order and the enforcement thereof by our Magistrates Courts in what is a relatively informal and cost-effective process to follow and which can be launched by any person by completing the prescribed forms with the Clerk of the Magistrates Court. The matter will then be placed before a Magistrate who can issue a protection order against a perpetrator involved in the harassment.

Where the perpetrator is unknown and is using social media and electronic platforms to conduct the harassment from, the PHA empowers the Magistrates Court to issue a directive to electronic communication service providers to provide the full details as per their records of the perpetrator using the accounts or email address through which the harassing action is being conducted. The PHA also empowers the Court to order the SAPS to conduct an investigation into the harassment in order to identify the perpetrator. The PHA further requires the electronic communication service providers and SAPS to report to the Court after having been ordered to provide the information and/or conduct the investigation.

Besides identifying the details of an account holder, it is as yet not clear what the obligations of a social media service provider are to protect a victim from harassment via their site and whether they can incur liability. This aspect has not been formally served before our Courts, but international case law relating to defamation, cyberbullying and harassment could perhaps give guidance here.

In countries such as the USA and the United Kingdom, the service providers who provide a platform for defamatory statements to be published, and they do not remove them, after being informed that the nature of the statements are defamatory and/or untrue, and/or amount to harassment have been held liable.

In the instance of our above client, we advised her to consider obtaining further legal advice and legal services in respect of the possibility of enforcing her rights in terms of the PHA. We advised her to consider informing the social media service provider involved of the harassing action with a request that they take steps against the relevant account holder and to remove the harassing comments. For many of these service providers, their good name and reputation will ensure that they take improper conduct via their platforms seriously and also take steps to curb such conduct.