An explicit video that started doing the rounds on Thursday of an official in the Limpopo government engaged in a sex act should not be shared, experts have warned.
Celebgossp.co.za news crew has seen the video concerned and was informed of the identity of the woman concerned, but sharing such sensitive and private footage could make one liable for prosecution.
The woman allegedly got herself into an online love affair with a younger man without realising he was recording her when they had video call sex. He allegedly then posted the footage on social media, and she was reportedly so shocked at this that she needed to be hospitalised. Her wedding ring can even be seen in the footage.
In 2016, mother-of-three Margaret van Wyk made headlines when an explicit photo of her started circulating. She trended on social media after she accidentally sent a saucy, intimate picture of herself to a school hockey group, which she had intended for her husband. She apologised and the group seemed to accept it, only for it to be shared weeks later as a screengrab on social media, dragging her family into weeks of public madness.
According to a legal expert, Margaret van Wyk had the option of laying charges against the thousands of people who reshared the picture, as they had all technically acted as cyberbullies. A media expert from Shepstone & Wylie, Verlie Oosthuizen, said the person or people who reposted her accidentally sent message could also face liability under the law, as they had “definitely infringed her dignity … and her privacy”.
He said that, had it been him, he would have approached the police and laid a charge of crimen injuria “against the person who made the initial posting”. However, it would not necessarily have stopped there alone, as the thousands of people who subsequently reshared it could also have faced charges, though “down the chain it becomes less and less strong”.
Van Wyk, however, opted to forgive and forget.
The law makes it clear that if you republish any statement or image that is slanderous, libellous or otherwise unconstitutional, you can still be held accountable for that, even though the publication of the content is second-hand.
However, added Oosthuizen, the strongest claim would have been against “the initial people that posted the picture”.
Kerri Crawford, a senior associate at Norton Rose Fulbright South Africa, said this year that South Africa has pending cyber-legislation that includes criminalising the distribution of intimate images without consent.
The proposed bill includes possible jail time of up to three years and/or a fine if a message is found to be intimate in nature (ie, involving nudity), and is distributed without the consent of the person depicted.
Another point is that if someone films him- or herself, they own the copyright to the material.
“South Africa’s Copyright Act specifically provides for interdictory (injunctive) relief, which on an urgent basis could achieve what victims are often most concerned about – having the offending images removed,” Crawford told BusinessTech.
Despite the fact that there is a legal risk associated with sharing the footage, The Citizen noted on Friday that several people had nevertheless uploaded the footage of the supposed Limpopo government official to their accounts without fear of the possible consequences.
Last year, businessman Kenny Kunene was ordered to remove a sexually explicit video and photographs of a woman alleged to have had an affair with President Cyril Ramaphosa from his online publication.
The High Court in Johannesburg heard that Kunene’s website had crossed the line in publishing the photographs and videos of the woman without her consent. She applied for an urgent interdict against the publication of her videos and photographs.
Kunene’s lawyers had argued that he published the footage to prove the authenticity of a story on his site about the then deputy president’s alleged extramarital affair with the 29-year-old.
Kunene was also ordered to pay the legal costs of the case.