Legal responses to cyber bullying

and sexting in South Africa

Charmain Badenhorst
CENTRE
FOR
JUSTICE
AND
CRIME
Introduction
unprepared and not fully equipped to deal PREVENTION
Children living in the early 21st-century are with these new developments in a balanced
exposed to new-age technologies, various and effective manner. CJCP Issue Paper
social networking sites, unlimited access to No. 10
the internet and chat rooms, and a choice A child is defined in the Constitution of the
of mobile phone communications. This has Republic of South Africa, 1996 (Act 108 of August 2011
significantly changed the way in which 1996) as a person under the age of 18
children communicate with each other, and years.1 As soon as a person reaches the age
about each other. It has also drastically of 18 years he or she is regarded as an adult
altered the type and content of the and is treated as such in the criminal justice
information they share with each other system. Legislation does not make special
concerning both themselves and their provision for young persons (18–25-year-
peers, as well as the way in which they olds).
express themselves in their communication.
This paper explores cyber bullying and
The advances in technology, the different sexting in South Africa. It focuses on the
mediums of communication and the responses to the new trends in undesirable
general changes in communication patterns communication behaviour within the
have resulted in unacceptable and un- context of the existing legislative frame-
desirable communication behaviour (or works and legal remedies available in South
misbehaviour) among children through the Africa. It also identifies some of the gaps
use of these technologies. and risks in the legal responses to children
involved in these activities, and offers some
The perceived distance and accompanying recommendations in an attempt to mini-
feelings of anonymity created by the various mise the gaps and accompanying risks to
electronic communication methods have children.
contributed to the development and
occurrence of some of this misbehaviour.
What are cyber bullying and sexting?
Cyber bullying and sexting are two relatively The internet, and to some extent mobile
new phenomena that have emerged along phones, create a ‘virtual’ world. Children
with children’s often unlimited and grow up spending a lot of time in this virtual
unmonitored access and use of electronic world, where there is no personal contact
communication technology. The technology with others – only messages and images.
used and the type of misbehaviour are This virtual world makes it easier for them
unfamiliar to adults, which has made it (and adults) to lose their inhibitions and to
difficult for parents to prevent and deal with act in ways and say things they would not
the phenomena. Even the legislature and ordinarily do or say in personal, face-to-
law enforcement officials appear to be face interactions.
2

Cyber bullying is The virtual world creates a sense of information about the victim on online
rampant in this anonymity and distance. This can result in dating or sex services.5
virtual world, where feelings of disconnect, which contribute to
perpetrators may lose the occurrence of cyber bullying and  Denigration. Denigration involves send-
sight of the fact that sexting among adults and children. Cyber ing or posting malicious gossip or
they are causing bullying is rampant in this virtual world, rumours about a person to damage his
harm to a ‘real’ where perpetrators may lose sight of the or her reputation or friendships. It also
person. fact that they are causing harm to a ‘real’ includes posting or sending digitally
person, or where their intentions for altered photographs of someone to
engaging in this misbehaviour may be others, particularly pictures that portray
different from the actual harm caused to the victim in a sexualised or harmful
their victims. way.

 Impersonation or identity theft. This

Cyber bullying
occurs when someone breaks into
There are various definitions of cyber someone else’s e-mail or social network-
bullying, most of which include acts ing account and poses as that person,
involving bullying and harassment through sending messages or other information
the use of electronic devices or technology.2 or pictures online in a bid to damage the
There are also various ways in which cyber victim’s reputation and friendships, or to
bullying is carried out. Burton and Mutong- get the victim into trouble or danger.
wizo3 highlight the following methods:
 Outing. Outing involves sharing some-
• Text messages one’s secrets or embarrassing informa-
• Picture/video clips (via mobile phone tion or images online with people whom
cameras) the information was never intended to
• Mobile phone calls be shared. In some instances deception
• E-mail is used to trick someone into revealing
• Chat rooms their secrets or embarrassing informa-
• Instant messages tion, and these are then shared online
• Websites and blogs with others.
• Social networking sites (such as
Facebook, Twitter)  Cyber stalking. Like traditional stalking,
• Internet gaming. cyber stalking involves threats of harm or
intimidation through repeated online
Burton and Mutongwizo4 have identified harassment and threats.
various types of cyber bullying, including
the following:  Happy slapping. Happy slapping in-
volves incidents where people walk up
 Harassment. Harassment involves fre- to someone and slap them, while
quently sending a cruel or threatening another captures the violence using a
message to a person’s e-mail account or mobile phone camera.
mobile phone. It is usually persistent and
repeated and is directed to a specific
Sexting
person. It may cause alarm, annoyance
or substantial emotional stress to the Sexting – ‘texting’ and ‘sex’ – involves the
receiver. The South African Law Reform sending of nude or semi-nude photos or
Commission distinguishes between videos and/or sexually suggestive messages
direct and indirect online harassment. via mobile phone texting or instant
Direct harassment includes threats, messaging.6
bullying or intimidating electronic
messages sent directly to the victim. Another definition of sexting focuses on the
Indirect harassment includes spreading involvement of children in sexting. It
rumours about the victim on internet emphasises that the sexually explicit texts or
discussion forums, subscribing the victim nude or partially nude images of minors are
to unwanted online services and posting send to other minors, and that these images

CJCP Issue Paper 10 August 2011

 3

may in some instances be classified as child The relationship between sexting and But the problem with
pornography.7 cyber bullying sending these types
There is a definite relationship between of photos or
There are three main scenarios in which sexting and cyber bullying. The connection messages is that the
sexting occurs:8 becomes clear in instances where, for sender loses control
example, images sent voluntarily to over what happens to
• Exchanges of images solely between two romantic partners are used to avenge a the photos or
romantic partners. broken relationship. In Florida, United messages once the
States (US), an 18-year-old high school ‘send’ button has
• Exchanges between romantic partners student who had recently broken up with been pressed.
that are then shared with others outside his 16-year-old girlfriend e-mailed her nude
the relationship. images, which she had originally sent to him
only, to everyone on her e-mail contact list.9
• Exchanges where at least one person
would like to start a romantic
The impact of cyber bullying
relationship.
The psychological impact of cyber bullying
It may be argued that people (including is often more traumatising than physical
children) have the right to privacy and to bullying because of the extreme public
express themselves freely, and that they nature of the bullying. Online exposure
therefore have the right to take and send means that the whole world can witness the
nude or semi-nude photos or videos and/or victim’s humiliation. Since children spend a
sexually suggestive messages to others via lot of time on their mobile phones and in
mobile phone texting or instant messaging. cyber space, cyber bullying can happen 24 The psychological
Furthermore, taking and keeping nude or hours a day, and the victim may feel that impact of cyber
semi-nude photos or videos of oneself for there is no way to escape it. bullying is often
personal use is not illegal per se. more traumatising
Cyber bullying may result in victims than physical bullying
But the problem with sending these types of suffering from anxiety and depression and, because of the
photos or messages is that the sender loses in extreme cases, may cause suicide. But extreme public
control over what happens to the photos or victims of cyber bullying may be reluctant nature of the
messages once the ‘send’ button has been to report the bullying for fear that their bullying.
pressed. Chances are that these photos or mobile phones may be taken away or their
messages will end up online, and will exist internet access suspended.
forever in cyber space. Once the photo or
message is in cyber space, the sender is not Below are some examples of the impact of
able to retrieve or delete it. Another cyber bullying:
concern is that compromising photos or
videos of a child may fall into the hands of  In 2003, Ghyslain Raza from Quebec,
a paedophile and may be used for illegal Canada, made a home video of himself
purposes, such as images to groom other wielding a golf ball retriever as a light
children. saber as he pretended to be the Star
Wars character Darth Maul. Classmates
Another unintended consequence of sexting found the tape and posted it online. The
between children, which is specifically video became one of the most
applicable to children, is that some of these downloaded clips ever. The video clip
photos, videos or messages of children may was not flattering and showed Ghyslain’s
be regarded as child pornography. Sending lack of athletic skill and his portly figure.
or sharing them may therefore constitute a Ghyslain was humiliated to such an
contravention of legislation prohibiting the extent that he dropped out of school and
possession, distribution, creation or had to be admitted to psychiatric care.
production of child pornography. This may
result in children being prosecuted on very  In Macclesfield, United Kingdom (UK),
serious charges, with serious consequences, 15-year-old Megan Gillian took a fatal
for something they do not necessarily regard dose of painkillers in January 2009 after
as wrong or illegal. being harassed and teased online.

Legal responses to cyber bullying and sexting in South Africa

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The UNCRC  In Missouri, US, 13-year-old Megan The committee recognised that children as
recognises the Meier committed suicide in October users of ICTs may become involved in
occurrence and 2006 allegedly as a result of being violence through ICTs. This violence may
seriousness of cyber tormented by a fake MySpace persona involve bullying others, and creating and
bullying and sexting; created by Lori Drew, the mother of uploading inappropriate sexual material. It
but it also requires Megan’s rival. recommended that state parties should
that the response to ensure that relevant legislation provides
such incidents be adequate protection of children in relation
proportionate to the
Recognition of cyber bullying in
to ICTs. The committee further recom-
circumstances and
international instruments
mended the provisioning of accurate,
nature of the accessible and age-appropriate information
United Nations Convention on the
acts, and that and empowerment on life skills, self-
Rights of the Child, 198910
the individual protection and specific risks – including
circumstances of The United Nations Convention on the those relating to ICTs and how to develop
the child perpetrator Rights of the Child (UNCRC), 1989 was positive peer relationships and combat
be taken into ratified by South Africa on 16 June 1995. bullying – through the school curriculum
account. One of the aims of the UNCRC is to and in other ways.
encourage state parties to take the
necessary measures to ensure that the rights It is clear that the UNCRC recognises the
of children are protected according to occurrence and seriousness of cyber
internationally accepted standards. These bullying and sexting; but it also requires that
protective measures are applicable to all the response to such incidents be
children, especially those in conflict with proportionate to the circumstances and
the law. nature of the acts, and that the individual
circumstances of the child perpetrator be
Article 19.1 of the UNCRC states that: taken into account. A purely punitive
approach should be avoided in these cases.
States Parties shall take all appropriate
legislative, administrative, social and
International cases of cyber bullying
educational measures to protect the child
and sexting
from all forms of physical or mental
violence, injury or abuse, neglect or Cyber bullying
negligent treatment, maltreatment or
exploitation, including sexual abuse, Numerous incidents of cyber bullying
while in the care of parent(s), legal around the world have been reported on in
guardian(s) or any other person who has the international media:13
the care of the child.
 In August 2009, also in the UK, Keeley
The United Nations Committee on the Houghton (18) was sentenced to three
Rights of the Child in 2011 elaborated on months’ imprisonment after pleading
Article 19 to include psychological bullying guilty to harassment. She cyber bullied
and hazing11 by adults and other children, another 18-year-old girl for four years
as well as acts committed via information and threatened to kill her. Keeley was
and communication technologies (ICT), the first person in Britain to be sent to
such as mobile phones and the internet prison for cyber bullying.
(referred to as ‘cyber bullying’).12
 In May 2009 two adolescent girls in
The committee also stated that although Australia were forced to leave one of
children are the actors in bullying, the role Sydney’s elite private schools when they
of the adults responsible for these children published material on MySpace, which
is crucial in all attempts to react appro- contained personal and defamatory
priately and to prevent such violence. In information about their classmates.
addition, the measures taken against the
perpetrator should not exacerbate violence  In September 2010 two teenage boys in
by taking a punitive approach and using Canada were charged with sexual
violence against violence. assault, and possession and distribution

CJCP Issue Paper 10 August 2011

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of child pornography after they posted unless she took a class on sexual There appears to be a
photographs on Facebook of the gang violence. The Federal Appeals Court relationship between
rape of a 16-year-old girl at a private ruled that prosecutors could not young people who
party.14 criminally charge a teenage girl who commit cyber
appeared in photos similar to those bullying and those
 In May 2011 a 17-year-old high school involved in the case.18 This judgment who are the victims
student in Illinios, US, was arrested for highlights the fact that it is not illegal for of cyber bullying:
allegedly making a Facebook sex list, people (even children) to keep nude or 69.7% of the study
which contained the names of ap- semi-nude images of themselves on their respondents who had
proximately 50 fellow students. The list mobile phones, and that law bullied others via text
detailed the victims’ sexual behaviours, enforcement should refrain from messaging had
sexual characteristics and physical unnecessarily criminalising children for themselves been
appearance in explicit and derogatory doing so. bullied.
language. The perpetrator was expelled
from school and was arrested on charges
Cyber bullying in South Africa
of disorderly conduct.15
There is limited research on cyber bullying
and sexting in South Africa. As such, it is
Sexting
unclear how many children are involved in
Some states in the US are using criminal these practices. The number of children
investigations and prosecutions under state subjected to cyber bullying is also
child pornography laws in an attempt to unknown.19
control sexting.16
Some limited studies, however, have been
Some cases of sexting reported in the media conducted. The Centre for Justice and
highlight the legal responses to this Crime Prevention (CJCP) conducted a pilot
phenomenon: study in 2009 among 1 726 young people
between the ages of 12 and 24 years. The
 A 14-year-old girl in New Jersey faced study found that almost half of the
child pornography charges and potential respondents (46.8%) had experienced
sex offender registration after posting 30 some form of cyber bullying.20 Another
nude pictures of herself on MySpace.17 interesting study finding was that there
appears to be a relationship between young
 A 13-year-old boy in Ohio was charged people who commit cyber bullying and
after school officials found a sexually those who are the victims of cyber bullying:
explicit image of an eighth-grade girl on 69.7% of the study respondents who had
his mobile phone. bullied others via text messaging had
themselves been bullied.
 In Florida, two teenagers were convicted
of producing, directing or promoting a A study conducted in Nelson Mandela Bay,
photograph featuring the sexual conduct Port Elizabeth, among 1 594 primary and
of a child after they photographed secondary school learners indicated that
themselves naked and engaged in sexual 36% of the respondents had experienced
behaviour, and e-mailed the photograph some form of cyber bullying.21
to each another.
A more recent study on online victimisation
 In an interesting case in May 2010, a of children conducted by the Youth
Pennsylvania school district was sued by Research Unit of the Bureau of Market
a 17-year-old teenager who claimed that Research at the University of South Africa
her school principal confiscated her revealed that:22
mobile phone after he found nude
images she had taken of herself on it, • 21.46% of high school pupils surveyed
and turned the evidence over to prose- said they had been approached with
cutors. The Wyoming County district ‘unwanted talk about sex’;
attorney threatened to file felony child
pornography charges against the girl • 17.79% said they had received e-mails

Legal responses to cyber bullying and sexting in South Africa

6

Responses in South or instant messages with advertisements year-old girl at her daughter’s school.
Africa to both cyber or links to ‘X-rated’ websites; This happened after the other girl
bullying and sexting apparently regularly humiliated the
are fragmented and • 16.95% had opened messages or links woman’s daughter on MXit. The
rely on various pieces with pictures of naked people or people daughter’s name also appeared on a
of legislation, having sex; MXit ‘slut list’, which contained the
common law names of girls from various schools in
definitions of • 16.60% had been asked for sexual Springs, including their addresses,
criminal offences information about themselves; telephone numbers and schools.24
and civil law
remedies in cases. • 14.27% were worried or felt threatened  Two boys, aged 14- and 16-years-old,
by online harassment; and were arrested on 8 November 2010 for
the alleged rape of a 15-year-old school
• 9.90% said they had been asked to ‘do girl. The alleged rape took place at the
something sexual’. Jules High School in Jeppestown, and
the boys had allegedly filmed the
The study also found that male adolescents incident on their mobile phones.
were more likely than their female
counterparts to engage in unsafe online According to media reports covering
activities that put them at greater risk of their first court appearance, the boys
becoming victims of online victimisation. admitted their part in the consensual sex
but the victim maintained that she had
This behaviour includes opening messages been raped. After studying the evidence
showing pictures of naked people or people contained in the case docket, the
having sex (50.3%), accessing websites prosecutor concluded that there was
showing sexually explicit material (50.9%), insufficient evidence to prosecute the
or receiving e-mails or instant messages two boys on a rape charge and
with advertisements for or links to age- requested further investigations be
restricted websites (51.3%). conducted while considering other
possible charges.25
Cyber bullying and sexting: South
On 11 November 2010, the senior
African examples
public prosecutor and the acting
Although the terms ‘cyber bullying’ or director of public prosecutions had a
‘sexting’ may be unfamiliar to some, it is lengthy consultation with the girl and
clear from the definitions of each that such possible witnesses, after which they
cases have been reported on in the local decided to charge all three children (the
media recently, emanating from victims two boys and the girl) with
seeking relief in South African courts. Some contravention of section 15(1) of the
of these cases include the following: Sexual Offences and Related Matters
Act, 2007 (Act 32 of 2007). In terms of
 In April 2008 a businessman obtained this section, a person who commits an
an interdict against a Durban woman act of sexual penetration of a child,
after she became obsessed with his 17- despite the child’s consent, is guilty of
year-old daughter, whom she met in a having committed an offence.
MXit chat room. The North Gauteng
High Court in Pretoria prohibited the In cases where both the ‘perpetrator’
woman from contacting the business- and ‘victim’ are children, the institution
man, his daughter, his son or any of his of a prosecution must be authorised in
family members telephonically or writing by the National Director of
electronically.23 Public Prosecutions, and both parties
must be prosecuted for contravention of
 In Springs, Gauteng, the mother of a 16- the said section.
year-old girl obtained a peace order in
terms of section 384 of the Criminal There were also reports that all three
Procedure Act, 1955 against another 16- accused were charged with contraven-

CJCP Issue Paper 10 August 2011

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tion of the Films and Publications Act, The deputy principal sued for defa- Perpetrators of acts
1996 because the recording and mation and issued summons against the of cyber bullying
distribution of the sexually explicit video three school boys to claim for damages which violate the
clip is regarded as the ‘creation, for injury to his dignity, good name and dignity of another
production, distribution or possession of reputation. The North Gauteng High person and meet the
child pornography’.26 Court found in favour of the deputy other requirements of
principal and awarded R45 000 in this criminal offence
All three accused appeared at a damages. The boys appealed to the may therefore be
preliminary inquiry on 17 November Supreme Court of Appeal, but their charged with crimen
2010 and they were released into the appeal was dismissed. iniuria.
custody of their parents. The charges
were provisionally withdrawn on 1 During the case in the Constitutional
December 2010 and the court ordered Court, the Restorative Justice Centre
that all three accused must attend a entered the arena as one of two amici
three-month diversion programme.27 curiae. The centre asked the court to
change the law so that in defamation
 In February/March 2006, three high cases concerning children the parties
school boys aged 15- to 17-years-old should be required to engage
were charged with crimen iniuria after meaningfully with each other in
publishing an alleged defamatory image reconciliatory proceedings before any
of the deputy principal of their school. court action is brought.29 The Con-
One of the boys created the defamatory stitutional Court upheld the appeal but
image electronically by attaching the reduced the amount of the damages
heads and faces of the principal and awarded to R25 000. The court also
deputy principal on to a picture of two developed the common law to recognise
naked men sitting next to each other in the value of apology and to discourage
a sexually suggestive and intimate the bringing of such matters to court
manner. The boy took the school badge without an attempt to resolve them
from the school website and used it to through restorative justice methods.30
obscure the men’s genitals. He then sent
the image to a friend’s mobile phone,
Existing legal responses to cyber
who forwarded it to other learners at the
school. One of the accused printed the
bullying and sexting in South Africa
image and placed it on the school’s
Introduction
notice board.28
Responses in South Africa to both cyber
The school authorities disciplined the bullying and sexting are fragmented and
three boys: they were prohibited from rely on various pieces of legislation,
assuming leadership positions at the common law definitions of criminal
school or from wearing honorary colours offences and civil law remedies in cases.
for the rest of the year. They also had to Generally, the undesirable acts contravene
attend three hours’ detention at school the relevant provisions of existing criminal
for five consecutive Fridays. law legislation, fit common law or statutory
crime definitions, or meet the requirements
The boys were also criminally charged, for civil law remedies.
but the case was diverted from the
criminal justice system after the boys
Cyber bullying
acknowledged responsibility for their
actions. In terms of the diversion order, South Africa does not have specific
the boys had to clean cages at the local legislation dealing with cyber bullying,
zoo for 56 hours as community service. which would usually fall under the
The school principal accepted the definition of harassment. The victims of
apologies of two of the accused, but the cyber bullying therefore have to rely on
deputy principal was legally advised not remedies offered by the criminal law and/or
to entertain discussion of an apology. civil law. The legal consequences and
remedies discussed below are applicable to

Legal responses to cyber bullying and sexting in South Africa

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Defamatory remarks all perpetrators of cyber bullying, and are the victim that such personal violence is to
in chat rooms, on available to all victims of cyber bullying, take place, may therefore fall within the
social networking irrespective of the ages of the perpetrator or ambit of the definition of assault. The test is
sites, e-mails, text the victim. subjective: Did the victim believe that the
messages or instant perpetrator intended to, and was able to,
messages to third carry out the threat?
parties are some of
Criminal law responses
the methods of Depending on the nature of the acts of  Criminal defamation
committing cyber cyber bullying, the perpetrator may be
bullying that will fall criminally charged with the following Criminal defamation is defined as the
within the ambit of criminal offences: unlawful and intentional publication of a
this criminal offence. matter concerning another, which tends to
 Crimen iniuria seriously injure his or her reputation.34
Criminal defamation includes both verbal
Crimen iniuria consists of the unlawful, and written defamation. It is a requirement
intentional and serious violation of the that the defamatory conduct or words must
dignity or privacy of another person.31 In have come to the notice of someone other
this instance, both a subjective and than the victim. If not, the perpetrator can
objective test is applied to determine only be charged with crimen iniuria.
whether or not a person’s dignity has been Defamatory remarks in chat rooms, on
violated. It must be clear that the victim is social networking sites, e-mails, text
aware of the perpetrator’s offending messages or instant messages to third
behaviour, and the victim must feel parties are some of the methods of
degraded or humiliated by it. It is not committing cyber bullying that will fall
required that the perpetrator’s words or within the ambit of this criminal offence.
conduct should have come to the attention
of people other than the victim: the victim’s  Extortion
dignity may be infringed upon even if a
third party was unaware of it. Perpetrators Extortion is committed when a person
of acts of cyber bullying which violate the unlawfully and intentionally obtains some
dignity of another person and meet the advantage, which may be of either a
other requirements of this criminal offence patrimonial or non-patrimonial nature,
may therefore be charged with crimen from another by subjecting the latter to
iniuria. This crime can also be committed pressure, which induces him or her to hand
by communicating to somebody else a over the advantage.35
message containing, expressly or implicitly,
an invitation to or a suggestion of sexual With reference to cyber bullying, extortion
immorality or impropriety, or by sending may be committed where a person inten-
indecent photos.32 tionally and unlawfully threatens to elec-
tronically distribute information or
 Assault compromising images about another person
unless the victim hand the perpetrator some
Assault is defined as any unlawful and advantage.
intentional act or omission:
Civil law responses
a) which results in another person’s
bodily integrity being directly or  Order to keep the peace
indirectly impaired, or
b) which inspires a belief or fear in In terms of section 384 of the Criminal
another person that such impairment Procedure Act, 1955 (Act 56 of 1955)36 a
of his or her bodily integrity is person who has been a victim of violent
immediately to take place.33 conduct by another person, or who has been
threatened with injury to himself or herself or
Cyber bullying, whereby the perpetrator to his or her property by another person, or
threatens the victim with personal violence where the other person has used language or
and this conduct inspires fear or a belief in behaved in a manner towards the victim that

CJCP Issue Paper 10 August 2011

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is likely to provoke the breach of peace or instant messaging between children. Any South Africa does not
assault, that person may approach a legal response to this phenomenon will fall, have any legislation
magistrate for an order to keep the peace. if applicable, within the ambit of child dealing specifically
Upon receipt of such an application, the pornography, which is prohibited in terms with the sending or
magistrate may order the perpetrator to of the Films and Publications Act, 1996 (Act sharing of nude or
appear before him or her, and may order the 65 of 1996), the Films and Publications semi-nude photos or
arrest of the perpetrator to ensure that the Amendment Act, 2009 (Act 3 of 2009) and videos and/or
latter appears before the magistrate. the Criminal Law (Sexual Offences and sexually suggestive
Related Matters) Amendment Act, 2007 messages of children
After an enquiry, the magistrate may order (Act 32 of 2007). via mobile phone
the perpetrator to give recognisances with texting or instant
or without sureties to the amount of R2 000 The discussion below focuses on the messaging between
for a period not exceeding six months to unintended possible legal consequences to children.
keep the peace towards the complainant children who send and receive nude or
(victim) and refrain from doing or semi-nude photos or videos and/or sexually
threatening injury to his or her person or suggestive messages of children via mobile
property. This order may be accompanied phone texting or instant messaging to and
by an order of costs. In the event that the from other children.
recognisances are not observed, it may be
declared forfeited, and any such Sexting between consenting adults who
declaration of forfeiture will have the effect send such photos, videos or messages of
of a judgment in a civil action in the adults to other adults is not illegal. Those
magistrate’s court of the district.37 who voluntarily engage in such practices
are not at risk of facing the possible legal
 An interdict and a defamation claim consequences discussed next. However,
adults sending nude or semi-nude photos
An application for an interdict may be or videos and/or sexually suggestive
brought in the High Court for an order messages of children via mobile phone
restraining a person from committing or texting or instant messaging do run the risk
continuing a wrongful act. This remedy is of being prosecuted under the said
also available where someone has been legislation as this constitutes child
threatened with a wrongful act. The pornography.
applicant in this instance may also sue for
defamation and claim for damages, where
The Criminal Law (Sexual Offences and
he or she has suffered an injury to his or her
dignity, and/or an injury to his or her good
Related Matters) Amendment Act, 2007
name and reputation as a result of the Child pornography is defined in the
wrongful act or threat.38 Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007 as:
Sexting
any image, however created, or any
Children have the constitutional right to description or presentation of a person,
privacy, which includes the privacy of their real or simulated, who is, or who is
communication. They also have the right to depicted or described or presented as
freedom of expression, which includes being, under the age of 18 years, of an
freedom of the press and other media, and explicit or sexual nature, whether such
the freedom to receive or impart informa- image or description or presentation is
tion and ideas. Any response to sexting intended to stimulate erotic or aesthetic
among children must take these constitu- feelings or not, including any such image
tional rights into consideration. or description of such person –

South Africa does not have any legislation (a) engaged in an act that constitutes a
dealing specifically with the sending or sexual offence;
sharing of nude or semi-nude photos or (b) engaged in an act of sexual
videos and/or sexually suggestive messages penetration;
of children via mobile phone texting or (c) engaged in an act of sexual violation;

Legal responses to cyber bullying and sexting in South Africa

10

It is clear that some (d) engaged in an act of self-mastur- photos or videos and/or sexually suggestive
acts of cyber bullying bation; messages via mobile phone texting or
and sexting may fall (e) displaying the genital organs of such instant messaging (sexting) between
within the ambit of person in a state of arousal or children may therefore fall within the
either or both of the stimulation; definition of child pornography and the
civil or criminal law (f) unduly displaying the genital organs unlawful exposure of a child (who receives
responses available or anus of such person; it) to child pornography.
in South African law. (g) displaying any form of stimulation of
a sexual nature of such person’s Sexting between children may also fall
breasts; within the ambit of section 22 of the
(h) engaged in sexually suggestive or Criminal Law (Sexual Offences and Related
lewd acts; Matters) Amendment Act, 2007, which
(i) engaged in or as the subject of prohibits exposing or displaying genital
sadistic or masochistic acts of a sexual organs, anus or female breasts to children.
nature; Causing such exposure or display is also
(j) engaged in any conduct or activity prohibited in terms of this section. Exposing
characteristically associated with or displaying genital organs, anus or female
sexual intercourse; breasts to a child is a sexual offence.
(k) showing or describing such person –
(i) participating in, or assisting or Therefore, if a child sends a photo of genital
facilitating another person to organs, anus or female breasts to another
participate in; child, he or she runs the risk of being
or charged and convicted of contravening this
(ii) being in the presence of section. Also, if a child aids, abets, induces,
another person who commits or incites, instigates, instructs, commands,
in any other manner being counsels or procures another child to take
involved in, any act and send such a photo of the latter to the
contemplated in paragraphs (a) first child or any other person, he or she will
to (j); be liable in terms of section 55 of the Act.
or
(l) showing or describing the body, or The Criminal Law (Sexual Offences and
parts of the body, of such person in a Related Matters) Amendment Act, 2007
manner or in circumstances which, furthermore creates a difficult situation for
within the context, violate or offend the friends of children involved in sexting,
the sexual integrity or dignity of that which amounts to contravention of the said
person or any category of persons laws.
under 18 or is capable of being used
for the purposes of violating or In terms of section 54 of this Act, a person
offending the sexual integrity or who has knowledge that a sexual offence
dignity of that person, any person or has been committed against a child
group or categories of persons. (exposure to or displaying of genital organs,
anus or female breasts to a child, or
Section 19 of the Criminal Law (Sexual exposure or display of child pornography to
Offences and Related Matters) Amendment a child) must report such knowledge
Act, 2007 provides that any person immediately to a police official. Failure to
exposing or displaying, or causing exposure report such information is an offence, and if
or display, of child pornography to a child is convicted the person can be sentenced to a
guilty of the offence of exposing or fine or imprisonment for a period not
displaying, or causing the exposure or exceeding five years, or to both a fine and
display, of child pornography or such imprisonment.
pornography to a child. A conviction in
terms of this Act will also result in the child’s The friends of a child involved in sexting, in
name being registered as a sex offender in cases where such act contravenes the above
the national register for sex offenders. provisions of the Act, who have knowledge
of such acts, are therefore obliged in terms
Sending and sharing nude or semi-nude of the Act to report such knowledge.

CJCP Issue Paper 10 August 2011

 11

Films and Publications Act, 1996 (Act Another problem with resorting to the Role players in the
65 of 1996), the Films and Publications available remedies is that they may, in criminal justice
Amendment Act, 2009 (Act 3 of 2009) certain instances, be regarded as very harsh system should
Section 24B of the Films and Publications responses to acts committed by children therefore be careful
Amendment Act, 2009 (Act 3 of 2009) who are not fully mature and psycho- not to criminalise
provides inter alia that: logically developed and who may, as a unnecessarily all
result, not fully understand and appreciate children who engage
any person who unlawfully possesses or the seriousness and consequences of their in cyber bullying and
creates, produces or in any way actions. sexting.
contributes to, or assists in the creation or
production of any film, game or The intention of the legislature (with
publication which contains depictions, reference to the Criminal Law (Sexual
descriptions or scenes of child porn- Offences and Related Matters) Amendment
ography or which advocates, advertises, Act, 2007, the Films and Publications Act,
encourages or promotes child porn- 1996 and the Films and Publications
ography or the sexual exploitation of Amendment Act, 2009) was clearly aimed
children, shall be guilty of an offence. at prosecuting adults and not children, who,
by implication, are criminalised for offences
In this regard publication is defined to relating to child pornography. The intention
include ‘a photo and any message or was to protect children from adults who
communication, including a visual possess, create, produce and distribute
presentation, placed on any distributed child pornography. However, the way the
network including, but not confined to, the legislation is drafted allows for child
Internet’.39 perpetrators to be charged. If convicted,
their names are automatically placed on the
A person found guilty of contravention of register for sex offenders.
this section may be sentenced to a fine,
imprisonment or both. Role players in the criminal justice system
should therefore be careful not to
Sending and sharing nude or semi-nude criminalise unnecessarily all children who
photos or videos and/or sexually suggestive engage in cyber bullying and sexting.
messages via mobile phone texting or Ultimately, the law may need to be
instant messaging (sexting) between reviewed to adjust its impact on child
children may therefore, depending on the offenders.
content, also fall within the ambit of the
prohibition of possessing or creating, The inclusion of an affirmative defence for
producing and distributing child children engaging in sexting in the relevant
pornography. legislation may provide some kind of
solution. Although the child may still be
subjected to arrest, investigation and
Conclusion
appearances in court, such a defence may
It is clear that some acts of cyber bullying reduce efforts to prosecute children in
and sexting may fall within the ambit of terms of the said legislation in the first
either or both of the civil or criminal law place.
responses available in South African law.
However, the current law does not cover all
The Child Justice Act, 2008 (Act 75 of
the different types of cyber bullying that
2008)
occur.
The Child Justice Act, 2008 (Act 75 of
Two of the civil law remedies (interdict and 2008) (hereinafter referred to as ‘the Act’)
claim for damages) require an application in came into effect on 1 April 2010. The Act
the High Court, and this would usually mean creates a separate criminal justice system
that the victim would have to appoint a legal for children, and any child who commits a
representative, which may be very costly. criminal offence will be dealt with in terms
These remedies may therefore not be viable of the Act, including those who commit acts
solutions to all victims of cyber bullying. of cyber bullying which fall within the ambit

Legal responses to cyber bullying and sexting in South Africa

12

The Act aims to of the definition of a specific crime, and  encourage the child to be accountable
establish a child those engaged in sexting which is classified for the harm caused by him or her;
justice system that as child pornography.
entrenches the  meet the particular needs of the
principles of The Act aims to establish a child justice individual child;
restorative justice. ... system that entrenches the principles of
It recognises the restorative justice. It ensures children’s  promote the reintegration of the child
need for proactive accountability for crimes committed, into his or her family and community;
crime prevention, without necessarily criminalising them. It
and places emphasis recognises the need for proactive crime  provide an opportunity to those affected
on the effective prevention, and places emphasis on the by the harm to express their views on its
rehabilitation and effective rehabilitation and reintegration of impact on them;
reintegration of children in order to minimise the potential
children in order to for re-offending. The Act balances the  prevent stigmatising the child and avoid
minimise the interests of children and those of society, the adverse consequences flowing from
potential for re- with due regard to the rights of victims. being subject to the criminal justice
offending. system;
One of the central features of the Act is that
it creates the possibility of diverting criminal  reduce the potential for re-offending;
cases involving child offenders out of the
criminal justice system. There is no  prevent the child from having a criminal
exclusion from the possibility of diversion record; and
based solely on the nature of the offence,
and any child accused of committing any  promote the dignity and well-being of
crime can therefore be diverted from the the child, and the development of his or
criminal justice system, if desirable in the her sense of self-worth and ability to
circumstances. Diversion may be con- contribute to society.
sidered throughout the child justice process
up until before closure of the case for the If a child offender successfully complies
prosecution. with a diversion order, the matter is
regarded as finalised. The child will not
Diversion of a matter, in appropriate cir- have a criminal record and he or she can
cumstances, may be considered if the child: never be prosecuted again for that
particular offence.
 acknowledges responsibility for the
offence; In instances where the child fails to comply
with the diversion order, and depending on
 has not been unduly influenced to the reasons for such failure, he or she may
acknowledge responsibility; be subjected to a more onerous diversion
order, or the prosecutor may decide to
 there is a prima facie case against the proceed with the prosecution of the child. If
child; the prosecution proceeds, the court may
record the acknowledgement of responsi-
 the child and, if available, his or her bility made by the child as an admission,
parent, an appropriate adult or a and the state will therefore not have to
guardian consent to diversion; and prove it again.

 the prosecutor indicates that the matter The Act creates less harsh responses and
may be diverted. provides alternatives to children being
charged with criminal offences, including
The objectives of diversion are to, among those committed during acts of cyber
others:40 bullying or sexting. It may therefore be
argued that there is no need to seek
 deal with a child in conflict with the law, changes and alternatives in the way that
outside the formal criminal justice children who commit cyber bullying and
system in appropriate cases; sexting are being dealt with when charged

CJCP Issue Paper 10 August 2011

 13

with such criminal offences because the Act criminal. If the case is not diverted, the The Act only applies
makes it possible for them to be diverted. matter will go on trial in a child justice to children and
court. If the child is convicted on a charge creates a separate
of possessing, creating, producing and child justice system
Challenges in applying the Act in cases
distributing child pornography, he or she catering specifically
of cyber bullying and sexting
may be sentenced to imprisonment, where for the special needs
This may, however, be false comfort when applicable. The child’s name will also be of children.
dealing with cyber bullying or sexting. For entered into the sexual offender register
instance, when a child sends nude or semi- upon conviction.
nude photos or videos and/or sexually
suggestive messages via mobile phone If the acts committed during cyber bullying fit
texting or instant messaging to another the definition of crimen iniuria or defamation
child, and these photos, in the opinion of or any other less serious offence (Schedule 1
the police officer, are regarded as child offences), the police may issue a summons or
pornography, the police officer may charge hand the child a written warning to appear at
the sender with contravention of section 19 a preliminary inquiry. Schedule 1 offences
of the Criminal Law (Sexual Offences and are more likely to be diverted because these
Related Matters) Amendment Act, 2007. crimes are less serious and diversion can take
place before the child’s appearance at the
According to the Act, such a charge will preliminary inquiry.
then fall under the Schedule 3 offences
(serious offences) listed in the Act. The Act The decision to divert or not lies with the
provides for the arrest of children accused prosecutor, and each case is evaluated on
of committing Schedule 3 offences. The its own merits and circumstances. There is,
police officer may therefore, depending on however, no guarantee that a matter will be
the charges he or she decides to file at that diverted, and even if it is diverted, the child
moment, arrest the child who sent the may still be prosecuted if he or she fails to
photos, if the police officer believes that the comply with the diversion order. In cases
photos fall within the ambit of a Schedule 3 where the matter has not been diverted or
offence. If not released on bail on his or her where the child fails to comply with the
own recognisance or in the care of a diversion order and the prosecutor decides
parent/guardian/appropriate adult, the to proceed with the criminal trial, the
child may be detained in a police cell or matter will go on trial in a child justice
lock-up before his or her appearance at a court. If convicted, the child will be
preliminary inquiry. sentenced and will have a criminal record.

Following the arrest, the child may also be

Conclusion
subjected to questioning by the police, and
if the alleged act relates to sexting and a The Act only applies to children and creates
charge of possessing, creating, producing a separate child justice system catering
and distributing child pornography is being specifically for the special needs of
investigated, the child may be questioned children. The processes in the Act aim to
about his or her sexual history. protect children, and only relate to the way
children are treated and dealt with in the
Although the Act provides for the possibility criminal justice system and not to the
of diversion of all criminal matters involving nature of the charges that may be brought
children, irrespective of the nature of the against children. If a child and an adult
offence, Schedule 3 offences are the most commit the same criminal offence, the
difficult to divert because of the seriousness charges will be the same. The Act only
of these offences and the fact that the dictates the additional considerations to be
victims’ views have to be taken into taken into account when dealing with a
account. Before the matter may be child, and provides for extra protective
diverted, the child must also take measures applicable to children.
responsibility for the offence. This may pose
a problem when the child does not really Although the Act provides for the
regard his or her actions as wrong and protection of children in the criminal justice

Legal responses to cyber bullying and sexting in South Africa

14

It is therefore clear system and creates the possibility of Despite media reports to the contrary, the
that a pure criminal children being diverted out of the criminal Bill does not provide a separate definition
justice response to justice system in appropriate cases, it does of cyber bullying. The definition of
cyber bullying and not mean that all children committing acts harassment, as stated in the Bill means:
sexting, in applicable of cyber bullying (fitting the definition of a
cases, does not crime) or sexting (that is regarded as child directly or indirectly engaging in conduct
provide a sustainable pornography) will be diverted. Each case is that causes harm or inspires the
solution to the decided on its own merits, and even if the reasonable belief that harm may be
problem. matter is diverted the child who fails to caused to the complainant or a related
comply with the diversion order may still be person by unreasonably –
prosecuted.
(a) following, watching, pursuing or
Depending on the seriousness of the accosting of the complainant or a
offence, according to the police officer related person, or loitering outside of
dealing with the matter, the child may be or near the building or place where
arrested and detained. If the prosecution of the complainant or related person
the child proceeds and the child is resides, works, carries on business,
convicted, he or she will have a criminal studies or happens to be;
record. In the case of a conviction on a (b) engaging in verbal, electronic or any
sexual offence, he or she will be registered other communication aimed at the
as a sexual offender in the national sexual complainant or a related person, by
offender register. any means, whether or not
conversation ensues; or
Also, a conviction on a criminal charge does (c) sending, delivering or causing the
not prevent the victim from claiming delivery of letters, telegrams,
damages from the child in a civil court, and packages, facsimiles, electronic mail
the child may therefore also be liable for or other objects to the complainant
such damages if the claim is successful. or a related person or leaving it where
it will be found by or given to, or
It is therefore clear that a pure criminal brought to the attention of, the
justice response to cyber bullying and complainant or a related person.
sexting, in applicable cases, does not
provide a sustainable solution to the The definition is wide enough to include
problem. Although such responses may be acts of cyber bullying. Harm, as defined in
necessary and essential in serious cases, the Bill, means any mental, psychological,
other interventions that do not unnecessar- physical or economic harm.
ily criminalise children will be more
desirable in the majority of cases. With regard to protection against
harassment – and by implication cyber
bullying – the Bill makes provision for the
Proposed legislation dealing with cyber
complainant to apply for a protection order
bullying in South Africa against harassment in any magistrate’s
In 2003 the then Minister of Justice and court. Upon receipt of the application for a
Constitutional Development approved an protection order, the court must, if satisfied
investigation into stalking by the South that there is prima facie evidence that:
African Law Reform Commission. Issue
Paper 22 was published in 2003 and a  the respondent is engaging or has
Discussion Paper was published in 2004 engaged in harassment;
with a draft bill on stalking.
 harm is being or may be suffered by the
Following this investigation, the Protection complainant or a related person as a
from Harassment Bill, 2010 (Bill 1 of 2010) result of that conduct if a protection
was tabled before Parliament in 2010. The order is not issued immediately; and
Bill is currently being deliberated on in
Parliament and is expected to be  the protection to be accorded by the
implemented towards the end of the year.41 interim order is likely not to be achieved

CJCP Issue Paper 10 August 2011

 15

if prior notice of the application is given The fact that the Bill provides for the There is a definite
to the respondent, protection order to be issued by link between sexting,
magistrates’ courts will make this remedy cyber bullying and
issue an interim protection order against the more accessible to victims because the harassment that is
respondent. application can be made even if the victim often overlooked.
is not legally represented. It will therefore
The interim protection order must be be much cheaper than an application for an
served on the respondent, and it must call interdict in the High Court.
on the respondent to show cause why the
protection order must not be made final. Although acts of cyber bullying do fall
After hearing all the evidence, the court within the ambit of the Bill and the Bill does
must issue a protection order if it finds on a provide some protection to the victims of
balance of probabilities that the respondent cyber bullying, such protection will only be
has engaged in or is engaging in harass- available if the victims know who the
ment. When the court issues a protection perpetrators are and where to find them.
order (including an interim protection The Bill is in nature a civil law response, and
order), it must make an order authorising a the victim will still have to use the criminal
warrant for the arrest of the respondent and justice system if he or she wants the
suspend the execution of that warrant perpetrator to be criminally charged for his
subject to compliance with the protection or her actions. The victim will therefore still
order. have to follow two processes.

When the respondent fails to comply with The Bill also covers instances where images
the protection order, the complainant may or messages sent as part of sexting are used
hand the warrant of arrest to any member for cyber bullying or harassment purposes
of the South African Police Service, together after, for example, the end of a relationship
with an affidavit wherein it is stated that the because such acts will fall within the ambit
respondent contravened the protection of the definition of harassment provided for
order. The said member must immediately in the Bill.
arrest the respondent if there are
reasonable grounds to suspect that the
Conclusion
complainant or related person is suffering or
may suffer imminent harm as a result of the Cyber bullying may be described as a new
alleged breach of the protection order. way of committing an old crime. Bullying
has undoubtedly always existed among
Any person who fails to comply with a children, and the reasons why some
protection order or who wilfully makes a children bully others are complex and
false statement in a material aspect is guilty diverse.
of an offence and liable on conviction to a
fine or imprisonment for a period not Sexting, however, is a relatively new
exceeding five years. phenomenon. Not all forms of sexting are
illegal. Sexting between adults is not illegal
An application for a protection order does as long as the images or videos do not
not mean that the complainant cannot lay include children. Sexting between children,
criminal charges against the perpetrator. on the other hand, is more complex.
The complainant can therefore still lay Children may not really understand and
criminal charges for assault or crimen iniuria appreciate the risks and possible conse-
or any another criminal charge, depending quences of sending nude or semi-nude
on the nature and circumstances of the photos or videos and/or sexually suggestive
case. Therefore, if a child commits cyber messages via mobile phone texting or instant
bullying, a protection order may be issued messaging to other children, and this makes
against him or her, he or she may be it more difficult to prevent.
charged criminally if the act falls within the
ambit of the definition of a criminal There is a definite link between sexting,
offence, and he or she may be liable to pay cyber bullying and harassment that is often
damages following a civil action. overlooked.

Legal responses to cyber bullying and sexting in South Africa

16

The unintended legal Cyber bullying and sexting do occur in  Police officers, prosecutors, presiding
consequences, where South Africa, but the extent of the officers, probation officers and legal
children face possible phenomena is not clear. representatives should be educated and
prosecution on child sensitised about occurrences of cyber
pornography–related There are various civil and criminal bullying and sexting, as well as on the
charges, are a remedies available in South African law, causes of this behaviour.
concern. and further attempts by the legislature to
increase the protection of victims of  Arresting and charging children who
harassment, which includes cyber bullying, engage in cyber bullying and sexting
are in progress. The possible legal should be used only as a measure of last
consequences of acts of cyber bullying are resort, and alternative methods to deal
the same for children and adults. The Child with these children should be
Justice Act, 2008 creates a separate child investigated and prioritised.
justice system for children, which allows for
children to be diverted out of the criminal  In cases where criminal charges are
justice system and provides for additional unavoidable due to the seriousness and
considerations and protective measures nature of the acts, prosecutors should,
applicable to children in conflict with the where appropriate, divert matters out of
law. the criminal justice system.

Although these criminal law and/or civil law  Diversion programmes addressing the
responses may be essential to protect the causes and effects of cyber bullying and
rights and well-being of victims in some sexting should be available and
instances of cyber bullying and sexting, the accessible to these children.
prevention of cyber bullying and sexting
does not lie solely within the justice system.  Restorative justice approaches should be
These responses may be inappropriate and, encouraged to ensure participation of
in some instances, too severe in relation to victims in the process. These approaches
the acts committed by the children. The should, where possible, be the first point
unintended legal consequences, where of intervention and, if successful, the
children face possible prosecution on child end of the matter.
pornography–related charges, are a
concern. Other role players also need to participate
in efforts to prevent cyber bullying and
The prevention of cyber bullying and sexting. Recommendations in this regard
sexting, and ways to effectively address include the following:
these phenomena, require multidisciplinary
approaches and interventions.  The media should be encouraged to
participate in prevention efforts. The
media can play an important role in
Recommendations
raising awareness about cyber bullying
This paper has focused on the legal and sexting, and the consequences of
responses to cyber bullying and sexting. such actions. It can also educate
The recommendations will therefore focus children and parents on how to prevent
mainly on the way in which role players in cyber bullying and sexting.
the criminal justice system can contribute to
dealing with these behaviours:  Cyber safety, education and awareness-
raising about cyber bullying and sexting
 There is a need to review the Criminal should form part of the school
Law (Sexual Offences and Related curriculum. The Department of Basic
Matters) Amendment Act, 2007, the Education should ensure that schools
Films and Publications Act, 1996 and the have clear policies on how to deal with
Films and Publications Amendment Act, such incidents.
2009 to adjust the impact that these
laws have on child offenders in cases of  The companies that generate and host
sexting between children. social networking sites should have more

CJCP Issue Paper 10 August 2011

 17

responsibility. They should use their empowered to understand the The prevention of
technologies to discourage cyber bullying technologies used to engage in these cyber bullying and
and sexting, and should perhaps fund activities, and they should be made sexting, and ways to
prevention and diversion programmes. aware of any signs which may indicate effectively address
that their children are either engaging in these phenomena,
 Teachers should be trained to recognise cyber bullying or are on the receiving require multi-
the occurrences of cyber bullying and end of it. disciplinary
sexting in the class room and schools, approaches and
and to respond to such cases in an  Children should be educated and made interventions.
appropriate manner. aware of cyber bullying and sexting, the
consequences of these practices, and
 Parents and caregivers should be how to prevent it. They should also be
educated on the prevalence of cyber encouraged to report incidents of cyber
bullying and sexting. They should be bullying and sexting.

Legal responses to cyber bullying and sexting in South Africa

18

ENDNOTES

1 Constitution of the Republic of South Africa, 18 Miller et al v. Skumanick Case No. 3:09cv540.
1996 (Act 108 of 1996), Section 28(3). Available at http://www.aclupa.org/legal/
2 Burton P & Mutongwizo T, Inescapable legaldocket/milleretalvskumanick [accessed 4
Violence: Cyber Bullying and Electronic July 2011]. Also DUI Attorney.com, Sexting
Violence against Young People in South Africa. case goes to federal appeals court, 15 January
Issue Paper No. 8, Centre for Justice and 2010. Available at http://www.duiattorney.
Crime Prevention, Cape Town, December com/news/6587-sexting-case-goes-to-federal-
2009. appeals-court [accessed 4 July 2011]; and
3 Ibid. News24.com, Teen sues over sexting case, 21
4 Ibid. May 2010. Available at http://www.news24.
5 South African Law Reform Commission, com/SciTech/News/Teen-sues-over-sexting-
Stalking. Discussion Paper, Project 130, case-20100520 [accessed 1 June 2011].
September 2004. 19 Thornton L, ‘Protecting Minors from Harmful
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7 Youth Online Safety Working Group. 2010. 21 Von Solms R & De Lange M, Children at Risk
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10 Centre for Child Law, International Child Law saga, 2 April 2008. Available at http://www.
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11 Hazing refers to rituals and other activities 24 News24.com, MXit slut list ends in court, 8
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12 Committee on the Rights of the Child, 2011. 25 News24.com, Alleged gang rape victim also
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violence (CRC/C/GC/13), 18 April 2011. victim-also-faces-charges [accessed 1
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2011]. 26 November 2010. Available at http://www.
13 Street News Service, Online bullies to face iol.co.za/news/south-africa/western-cape/
the music for harassment, 9 March 2011. school-sex-video-just-tip-of-the-iceberg-
Available at http://www.streetnewsservice.org/ 1.878183?ot=inmsa.ArticlePrintPageLayout.
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face-the-music-for-harassment.aspx [accessed 27 News24.com, Jules High sex pupils in court,
23 May 2011]. 2 December 2010. Available at http://www.
14 Mail & Guardian Online, Mean girls get news24.com/SouthAfrica/News/Jules-High-
meaner online, 21 January 2011. Available at sex-pupils-in-court-20101202 [accessed 7
http://mg.co.za/printformat/single/2011-01- December 2010].
21-mean-girls-get-meaner-online/ [accessed 1 28 Le Roux and Others v Dey (Freedom of
June 2011]. Expression Institute and Restorative Justice
15 Criminal Law News Now, HS student arrested Centre as Amici Curiae) 2011 (3) SA 274
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sex-list/ [accessed 24 May 2011]. 29 Centre for Child Law, Child Law Matters.
16 Sacco et al, op cit. Annual Report for the Centre for Child Law,
17 Ibid. Faculty of Law, University of Pretoria, 2010.

CJCP Issue Paper 10 August 2011

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Available at http://www.centreforchildlaw. for section 319(3) and section 384.

co.za/images/le%20roux%20v%20dey% 37 South African Law Commission, op cit.
20media%20report.pdf [accessed 9 38 Hubbard D, Stalking: Proposed New
June 2011]. Legislation for Namibia. Monograph No. 3,
30 Ibid. Gender Research & Advocacy Project, Legal
31 Snyman CR, Criminal Law. Durban: Assistance Centre, Windhoek, Namibia,
LexisNexis, 2008, p 469. 2008.
32 Ibid, pp 470-473. 39 Films and Publications Amendment Act, 2009
33 Ibid, p 455. (Act 3 of 2009).
34 Ibid, p 475. 40 Section 51 of the Child Justice Act, 2008 (Act
35 Ibid, p 426. 75 of 2008).
36 This Act has been repealed by the Criminal 41 Street News Service, Online bullies to face
Procedure Act, 1977 (Act 51 of 1977), except the music for harassment, op cit.

Legal responses to cyber bullying and sexting in South Africa

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About the CJCP mission

author
The Centre for Justice and Crime Prevention • facilitating the implementation of crime
Charmain Badenhorst (CJCP) is dedicated to developing, informing prevention projects;
is a senior researcher and promoting innovative evidence-based
at the Council for crime prevention focused on the groups • providing sector-specific and accredited
Scientific and identified as being vulnerable to training in crime prevention for policy
Industrial Research victimisation or offending. The CJCP does makers, public sector officials and non-
(CSIR), Meraka this by: governmental organisation practitioners;
Institute. She holds and
B.Iuris, LLB, BA (Hons) • conducting rigorous research into issues
(Criminology), Master of relevance to policy makers, public • disseminating the results of its research
of Arts (Criminology) service officials, development partners and lessons learned to relevant
and D.Litt et Phil and crime prevention practitioners; audiences.
(Criminology) degrees
from the University of
South Africa.
About this paper
Badenhorst is an
admitted advocate of
the High Court of Very little is known about the true extent of these acts may result in the commission of
South Africa and cyber bullying and sexting in South Africa – criminal offences or lead to civil actions.
started her career as a two relatively new phenomena.
prosecutor in the This paper explores cyber bullying and
Department of Justice The occurrence of cyber bullying and sexting in South Africa and focuses on the
and Constitutional sexting has increased along with increased responses within the context of existing
Development. Her access to and usage of electronic legislative frameworks and legal remedies
research interests communication technology. Both adults available in South Africa.
focus mainly on and children are therefore at risk of
children in general, participating in or being exposed to these It also identifies some of the gaps and risks
children in conflict practices. in the legal responses applicable to children
with the law and who engage in cyber bullying and sexting,
related issues. It is important to examine the legal and offers some recommendations in an
responses to cyber bullying and sexting in attempt to minimise the gaps and
the South African context since some of accompanying risks to children.

© 2011, Centre for Justice and Crime Prevention Published by the Centre for Justice and Crime Prevention
ISSN: 1819-2661 PO Box 44702 Claremont 7735 SOUTH AFRICA
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The opinions expressed in this paper do not necessarily Email: wendy@cjcp.org.za
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Advisory Board or donors. Authors contribute to CJCP
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CJCP Issue Paper 10 August 2011