So, you sent that photograph in the ‘heat of the moment’ and now it’s public, what do you do? Last week I made a podcast about our right to privacy online in the context of being racist in private messages.
Two words, people of South Africa: CRIMEN INIURIA.
The issue
As above, my conclusion in the podcast is that the Right to Privacy as enshrined in the Constitution of South Africa does not necessarily cover racist statements made that are shared publicly by the other participant in the conversation. It is very different, however, if personal facts or photographs are shared. Read on.
Your rights
The Right to Privacy, very basically, is meant to protect us from having facts about our personal selves revealed to the public against our wishes or will. It is also meant to protect our communications from being ‘spied on’, our homes being searched unlawfully and our possessions being seized unlawfully. The intention is really to prevent unlawful and uninvited public intrusion into our personal space (including knowing facts about us) but also to prevent profit being derived from knowing your personal facts. If you have time and are more interested in this right and the remedies available for breach, Professor Burchell has written a paper which can be accessed on this link.
It is important to note at this point, that one of the most important rights we have is our Right to Dignity. We inherently have dignity and we have the right to our dignity respected AND protected. When somebody shares that naked selfie of you and you haven’t given them permission to do so, your dignity is basically being assaulted (together with your right to privacy being violated). There is no doubt in my mind about that.
Remedy
What can you do about it? You can lay a charge of crimen iniuria against the perpetrator (as well as pursue a civil suit of defamation). The most important thing for you is to have proof of what has happened. Take screenshots showing dates and times as well as other proof to your local police station, ask to speak to a lady officer if you are embarrassed and lay a charge of crimen iniuria.
Other
It is not true that the only remedy is to lay a charge under the Harrassment Act, Googlers.
Future
What is really annoying me, as a student of the good Professor Burchell, is watching the slew of suggestions for legislation flying across the tables of Parliament with well-meaning people coming up for definitions for crimes that are adequately covered by the common law.
The latest of these pearlers is the Films and Publications Amendment Bill which proposes to define Revenge Porn. Let me explain the frustration. When you ‘define’ a crime or offence in legislation, you invariably narrow scope AND create instances, at times, where extra elements have to be proved that are entirely unnecessary in the matter. Here is the proposed definition: “No person may expose, through any electronic medium including the internet and social networking sites, a private sexual photograph or film if the disclosure is made — without the consent of an individual who appears in the photograph or film; and with the intention of causing that individual distress.” You will have to go through that definition and prove every single thing written in there beyond a reasonable doubt in order to prove the crime.
Let’s unpack just one: “with the intention of causing that individual distress.” Please tell me how you’re going to prove that? Current crimen iniuria: “unlawfully and intentionally impairing the dignity or privacy of another person”. By merely taking a private photograph and making it public, you are intentionally impairing that person’s dignity which they inherently have. It doesn’t matter if you meant to cause distress or not.
Law-makers in this instance (in a Russell Peters accent), just ‘take it and go’.
*Please note that this ‘blog’ post should not be regarded as ‘legal advice’ and should most certainly not take the place of a legal professional who is advising you on a case as they will be well-versed with the facts of each individual case.
Philipa is the lead consultant and auditor at ProPrivacy. With clients as far afield as Canada, South Africa, Kenya, Germany, Spain and other such exotic locations, besides Cork and elsewhere in Ireland, Philipa enjoys a broad view of the state of data protection, privacy and cyber security worldwide. Philipa’s passion is manageable data compliance for SMEs.
Philipa is a qualified teacher besides holding a computer science (Bachelor of Science in Artificial Intelligence Programming) and electronic and intellectual property law (LLB) qualified. She is trained in constitutional (fundamental) rights litigation and enjoys a good debate.
Philipa has over twenty years of experience working in different sized organisations and sectors on operational, governance, risk management and compliance matters. She is an analytical and focused person that enjoys a challenge in the workplace. She loves technology, systems and people and has a passion for showing people how technology can make life easier and better. She understands that the world is driven by data today but privacy is paramount. Responsibly developed AI excites Philipa for the future.