The growth of modern technology has created another platform for bullying to take place. It is common nowadays for stalking, harassment or bullying to take place through social media networks like Twitter and Facebook. This conduct has been termed as cyber bullying. I have adopted cyber harassment as the operative word given its broad nature. It is recognized that bullying may relate mainly to young persons.
Cyber harassment is the use of technology to threaten, intimidate, embarrass, humiliate and or ridicule another person. With jurisdiction it is safe to conclude that there is no specific law that deals with cyber harassment. Cyber harassment may be dealt with under the Penal Code; the law or defamation and or invasion of privacy.
In terms of Section 192 of the Penal Code, any person who by writing, parting or by any means other than gestures or spoken words who unlawfully published any defamatory matter concerning another is guilty of criminal defamation. Defamatory matter is defined by Section 193 of the Penal Code as a matter which is likely to injure the reputation of another by exposing him or her to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by injury to his or her reputation.
The publication will be proved if it is either the spoken words or painting or picture as the case maybe in the social media network like Twitter or Facebook. For purpose of proving publication, it is immaterial if the defamatory matter was directly or completely expressed. Thus if the defamatory matter is posted in another person’s twitter or facebook account, then publication would have been proved.
There are general defenses to this offence like truthfulness of the defamatory matter or it being for the public benefit or privileged in terms of section 196 of the Penal Code. The criminal prosecution does not preclude one from vindicating his right through the court civilly if the words uttered are defamatory under the civil law of defamation or constitute an invasion of privacy if the subject matter of the cyber harassment, ridicule or threats relate to a painting or a photo.
The test used in the case of defamation is not materially different from that under criminal defamation, and so are the defenses. The personalleged to have been defamed will have to prove that the words uttered and or published in a social media network are false and were intended to lower his or her standing in the society and not for public interest.
The publication of one’s painting or photo which causes embarrassment or ridicules another person as in the case of Esterhuizen v The Voice Newspaper will be considered unlawful invasion of privacy if there exist no grounds of publication for public interest and without consent.
Notwithstanding the existence of law dealing with cyber harassment, there have been no cases brought to courts on the matter. By no means should this be taken as evidence of absence of cyber harassment, as those who have anything to do with Facebook and Twitter may know. The problem could also lie, sometimes, in the false identity of the person operating these social accounts.