Revenge porn criminalised


Recently President Cyril Ramaphosa signed into law the Films and Publications Amendment Act 11 of 2019 (“the Act”) which now, among other offences, criminalises revenge porn. 

Revenge porn is when an individual maliciously shares and/or distributes naked or nude and / or sexually explicit photos and/or videos of someone else without their permission with the intention of humiliating someone (usually a former partner).  It is often distributed/shares via social media/text messages emails and/or uploaded onto pornographic websites. 

Until the Films and Publications Amendment Act 11 of 2019 was signed into law if you were a victim of revenge porn you would have to file a case of crimen injuria.  Crimen injuria is a crime defined as the act of unlawfully and intentionally impairing the dignity or privacy of another person.

The Act now makes revenge porn a crime and in particular Section 18F of the Act now states as follows:

Prohibition against distribution of private sexual photographs and

films

18F. (1) No person may expose, through any medium, including the

internet and social media, a private sexual photograph or film if the

disclosure is made—

(a) without the consent of the individual or individuals who appear in the

photograph or film; and

(b) with the intention of causing that individual harm.

(2) It is a defence for a person charged with an offence under this section

to prove that he or she reasonably believed that the disclosure was

necessary for the purposes of preventing, detecting or investigating crime.

(3) The prohibition referred to in subsection (1) shall apply notwithstanding

that the individual who appears in the photograph or film might have

consented to the original creation of such photograph or film.

(4) For the purposes of this section and section 24E a photograph or film

is ‘private’ if, judging from the context in which the photograph or film is

taken or made, it was not intended by any individual in the photograph or

film to be seen by others.

(5) For the purposes of this section a photograph or film is ‘sexual’ if such

photograph or film—

(a) it shows all or part of an individual’s exposed female breasts, anus,

genitals or pubic area;

(b) it shows something that a reasonable person would consider to be

sexual because of its nature; or

(c) its content, taken as a whole, is such that a reasonable person would

consider it to be sexual.

(6) For the purposes of this section and sections 24E, 24F and 24G, the

internet service provider shall be compelled to furnish the Board or a

member of the South African Police Services with information of the

identity of the person who published the private sexual photograph or film.

If you are found to be in contravention of the above section 24E of the Act imposes a sanction of up to R150 000.00 and/or two years in prison if you cannot identify the individual in the content distributed but if you can identify the individual by virtue of their name, face, a birthmark, a tattoo or something else that would make the individual readily identifiable in the content distributed then the sanction imposed is R300 000.00 and/or a four year term of imprisonment. 

The Films and Publications Amendment Act 11 of 2019 has not yet been tested in our courts however section 18F (4) states as follows:

For the purposes of this section and section 24E a photograph or film

is ‘private’ if, judging from the context in which the photograph or film is

taken or made, it was not intended by any individual in the photograph or

film to be seen by others.”

This definition of “private” may accordingly be problematic in that it now states that content is only considered “private sexual photographs and films” and therefore protected in terms of the Act if it “was not intended by any individual in the photograph or film to be seen by others”.  If however for example you were to send a naked picture to your boyfriend, it may be argued that you intended for that photo to be seen by others and therefore it may not be considered “private” in terms of the Act and you arguable may not be able to rely on the Act.    

I do not believe it was the intention of the drafters of the Act to exclude this conduct from falling under protection of the Act, however, this definition may well be relied upon by an individual trying to evade conviction in terms of the Act when it is tested which would defeat the very purpose for which it was drafted.    




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