Revenge porn ruling highlights legal recourse for victims and repercussions for distributors

Image source: Sergii Gnatiuk – 123RF.com

The case followed a pattern familiar in similar cases: a jilted lover distributes the sexually explicit images of the ex-lover online with the purpose of inflicting harm to their dignity as some perverted form of revenge.

Often the perpetrator is male and the victim female. In this case, a woman who had entered into a romantic relationship with a man, in which sexual encounters had resulted, ended the relationship when she learned that the man was married, having been confronted with this revelation by the man’s wife. In retaliation, the man threatened to distribute images of her and the man engaging in sexual acts, which he had recorded without her knowledge, as a desperate act of coercing her into continuing with the relationship.

The man sent a WhatsApp message to the woman, threatening to share a pornographic video of hers to her family and friends. He directed her to a fake Facebook account he had created, and sent her a video clip of said material to demonstrate his intent. He proceeded to distribute images of the plaintiff, including nude images and images of her performing sexual acts with the man.

Throughout the judgment, which was handed down on 12 November, Judge Shanaaz Mia emphasised the harm suffered by the plaintiff. "Pain and suffering", and "emotional trauma" were the words used by the judge. The man’s wife also posted defamatory statements on the Facebook account, imputing that the plaintiff was a "homewrecker".

In a statement released yesterday, the Film and Publication Board said it is "encouraged by this judgment, particularly its highlighting of the suffering inflicted on the victim. Revenge pornography is indeed an act of violence against its victims, and should be punished in terms of the law."

Films and Publications Act

The Film and Publication Board (FPB) is a content regulator established in terms of the Films and Publications Act 65 of 1996 as amended (the Act). The mandate of the FPB is to regulate the creation, production, possession and distribution of films, games, certain publications and the internet.

Amongst others, the Act prohibits the sharing of harmful and/or prohibited content such as child pornography and revenge pornography. For instance, section 18F (1) (a) and (b) of the Act stipulates that "no person may expose, through any medium, including the internet and social media, a private sexual photograph or film if the disclosure is made:

• without the consent of the individual or individuals who appear in the photograph or film; and
  
• with the intention of causing that individual harm”.

Having been established through a 1996 Act of parliament, the FPB sought an amendment of the FP Act and worked for the introduction of regulations that would bring this regulatory authority to align with recent developments in the information and communications technologies. In 2021, President Cyril Ramaphosa promulgated the Films and Publications Amendment Act.

Section 18E provides for complaints-handling mechanisms to deal with complaints regarding prohibited content. Thus, section 18E notes that any person may lodge a complaint with the FPB on matters relating to unclassified, prohibited content, or potentially prohibited content, in relation to services being offered online by any person, including commercial online distributors and non-commercial online distributors.

The FPB’s Council approved the complaints-handling procedures, which articulate the process for lodging complaints with the FPB. These can be found on the FPB website.

Distribution without consent

The FPB said in its engagements with the public, it has come across "many stories of incidents of revenge pornography. The preferred language to describe this phenomenon however is 'non-consensual sharing of intimate images', as the word 'pornography' denotes a certain level of voluntary participation by the actors."

In the judgment, it was noted that the plaintiff had no knowledge of the recording of the sexual encounters in question, and this aggravated the crime. However, the Films and Publications Act provides for the protection of the victim, even if he or she would have been aware or consented to the creation of such images.

The criteria for a complaint is that the publication or distribution of such material would have been done without her or his consent.

"In our public education campaign we emphasise this important factor, even if the content was created with the full knowledge of the victim, it is a crime to distribute said content without the consent of the other party," the FPB confirmed.

Role of social media platform owners

Platform owners are enjoined by law, specifically the Electronic Communications and Transactions Act of 2002, to take down offending content from their platforms.

Regulatory bodies such as the FPB also play a critical role for the public and victims to report such cases and seek speedy redress, either through the application of the existing laws and regulations, or through referrals to relevant authorities and services, including those that provide psychological and other types of support to victims.

"What this case has done, crucially, is that it marks the first time a complainant has successfully instituted a civil action for damages arising from revenge pornography. It highlights the harm caused to the victim and heralds an outlook where the courts can act on it with this harm in mind," the FPB concluded.