Bullying videos: what the SA law says
Can you be sued for sharing a bully video online? Can a cyber bully be prosecuted? Two SA lawyers unpack the recent phenomenon of bullying videos and the law.
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Bullying has been with us for millennia. Bullying videos are new. In fact, #bullyingvideos was recently trending on Twitter. The effects of a bullying incident going viral, on both the bully and the victim, is problematic.

But having video evidence of the assault or harassment means action can now more easily be taken against the bully. It's not a hear-say case for the principal any longer – the evidence of intentional bullying is there for all to see, and in some cases it may even land in court, as we have recently seen in the news.

Of course, the bully who actually hurts another child is seldom the one taking the video. The bystanders may be part of the gang, conspirators out to get a laugh or get revenge for whatever reason. Or they may be uninvolved, just passing by, getting popcorn and staying for the show. Can the person taking the video also get into trouble with the law?

And if you share this video on social media when it goes viral – can you land in hot water too? 

We asked two attorneys to help us answer these questions.

On what charge can a bully under 18 years be prosecuted? 

A bully could be prosecuted with or without video proof, even if they’re a minor. “Children from the ages of 11 up until 18 are deemed legally liable for their actions,” says Diana Schwarz, social media lawyer and a senior associate at Phukubje Pierce Masithela Attorneys.

Russel Luck, technology attorney at SwiftTechLaw, says physical bullying should be distinguished from cyber bullying. "Cyber bullying is generally verbal and involves naming and shaming victims. The penalties for this range from civil charges of defamation, to criminal charges of crimen injuria, harassment and hate speech (and racism, a form of hate speech). 

“Physical bullying involves physical harm and therefore covers all the sanctions of cyber bullying, as well as civil and criminal liability for assault or even assault with intention to cause grievous bodily harm (GBH)."

What can the victim do?

1. Lay charges at the police station

“If it is crimen injuria (unlawfully, intentionally and seriously impairing the dignity of another such as stalking, emotional or psychological abuse) or assault, this is a criminal matter,” says Diana. The victim would have to go to a police station and lay charges. “Once charges are pressed, the State will prosecute.”

2. Get an attorney and sue the bully

“If the victim wishes to sue the perpetrator for defamation (the wrongful and intentional publication of defamatory words or conduct that refers to another person), this would be a civil claim and the victim would need to be represented by an attorney. A civil case would require the victim to have funds, unless the work is done Pro Bono (taken on as a charity case)." 

3. Get a protection order

“Another legal remedy available to the victim is obtaining a protection order in terms of the Protection from Harassment Act, 2011. The Protection from Harassment Act 2011, provides that someone who has been bullied can ask the courts for an interim protection order, which will be granted as long as the court is satisfied the respondent has harassed, or is harassing, the applicant and that harm has or may be caused. 
“The interim order can be granted without the respondent’s knowledge, as forewarning may undermine the point of the protection order, and children under 18 can approach the courts without their parents’ knowledge.

4. Report to online platforms

Russel Luck: “When unlawful conduct is perpetrated online, technology law is often the best avenue to address these problems. Take Down Notices can be issued to remove websites that promote or share bullying content. The Protection of Personal Information (POPI) and anti-harassment & bullying regulations can be used as a cheap and speedy method of dealing with these problems. Our courts are over-worked and slow to react to online wrongfulness. By the time litigation or prosecution is initiated, the damage is already caused and amplified.”

What kind of maximum sentences are we looking at? 

“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 only as the last resort and then 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.

“A well known case of cyberbullying includes that of Keeley Houghton. In August 2009, in the UK, Keeley Houghton (18) was sentenced to three months’ imprisonment after pleading guilty to harassment. She cyber bullied another 18-year-old girl for four years and threatened to kill her. Keeley was the first person in Britain to be sent to prison for cyber bullying.”

Russel continues: “In practice, where minors are involved in bullying instances, very few cases result in criminal sanctions for minors. Usually the child’s guardians are called upon to deal with delinquent behaviour. However, juvenile correctional services do exist and are used for situations where minors commit violent crimes.”

Can the person who filmed the incident be prosecuted? 

“If the person who filmed the incident did so for the purposes of publicly publishing the video, this person could also be sued for defamation civilly and or crimen injuria criminally.”

Russel Luck says, “Generally speaking, a person has a duty to take active steps (such as contacting police), otherwise they, too are legally liable. A person who assists the primary bully in their wrongful conduct could be criminally convicted as an accessory to the crime for physical assistance and perhaps, civilly, for sharing the content in a viral nature. A bystander who shares this content might be in breach of online Cyber Bullying policies or Social Media Community Policies and (depending on the platform used) their conduct can be addressed through online complaint forums.

If it was a neutral passer-by, could there be a case that they should’ve helped or called for help instead of filming? 

“This is more of a moral dilemma. Unfortunately an omission from the law.”

And what happens if the person who took the video did so to serve as evidence against the bully? 

“There would be no liability for the person filming in this regard.”

Does the person who first distributes this video (whether via Whatsapp, Facebook or similar) have any liability?

“Yes all persons responsible for distributing the video on any platform, provided it is a public platform, can be sued for defamation if the video contains untrue statements about the victim.”

Russel Luck adds, “Depends on the situation. Generally not. If it’s shared maliciously, possibly.” 

What if someone else sees the video and shares it on social media?

“Even if a person simply shares or re-tweets the video but was not the original poster of the video, he or she can be sued for defamation as they are responsible for the publication of the defamatory material. 

“The person who distributes the video can also be charged with crimen injuria as distributing the video impairs the the dignity of the victim.

“The intention behind sharing the video would be weighed up. However the victim is entitled to take action against anyone spreading the video.”
But Russel Luck differs. “No. There is a criminal offence for child pornography being shared or even contained on your computer. But not for bullying.”

Does this apply to shaming the bully online as well? Some adults name and shame bullies on social media.

“Yes this is known as secondary bullying and has the same consequences as bullying. The bullies are also children (minors) and have the right to have their rights protected as well.”

Would the virality of the video also be taken into account? 

“Yes it would definitely be taken into account. The further the reach the more damage is caused,” says Diana. This means that the sanctions imposed on the bully could increase, adds Russel.  

What is the obligation/limitations of the media? 

“Children’s rights need to be protected. The Media are required to adhere to ethical guidelines when reporting on children, especially in instances where the child is either a victim or witness in a legal proceeding, and they must adhere to the Press Code.

“Section 8(3) of the South African Press Code states: “The press shall not identify children who have been victims of abuse, exploitation, or who have been charged with or convicted of a crime, unless a public interest is evident and it is in the best interests of the child.” 

“In most cases of good practice, the child victim’s identity is usually protected by merely concealing his or her identity and/or that of family members.”

What is the obligations of the school? 

Diana: “Every school should have a Bullying Policy in place which should include “Cyber Bullying”. Unfortunately this policy will determine the school’s responsibility and liability. The school however could only reasonably be held liable for incidents that occur on its premises or during school hours.”

Russel: “As long as a school doesn’t openly enable bullying to occur (making the school an accessory), there are few legal obligations. Only moral obligations and reputational issues in preventing bullying from occurring.”

What should anyone do if they see a video involving minors in a compromising situation? 

Diana: “The video should be reported to the online service provider on which it is being distributed and requested that the video be removed. The person responsible for distributing the video must as far as possible be made known to the platform, such as Facebook. Most online service providers now have specific security and cyber bullying settings in which to report these incidents or content.”

Russel Luck: “Contact the guardian(s) of the victim and perpetrator, if necessary, contact police, use online complaints procedures on Facebook, twitter, Instagram, etc. to have the offensive material removed before it goes viral.”

What should you do if you have already shared a bullying video on social media?

“Unfortunately, there is not much one can do except to immediately remove the post and apologise to the victim and hope that the victim will not sue for defamation. Most importantly, do not post, share or re-tweet information or content that could be defamatory and could infringe upon the rights of others – especially children.”

Russel Luck, technology attorney at SwiftTechLaw.
Diana Schwartz, social media lawyer and a senior associate at Phukubje Pierce Masithela Attorneys.

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