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Cyber bullying – what civil remedies are available in South Africa, if any?

Article by Shannon Vengadajellum of SchoemanLaw Inc

With the fast pace of advanced technology, more and more people are being bullied and harassed through the use of electronic devices and technology.

The younger generation especially, find themselves being constantly and repeatedly harassed on social media platforms such as Facebook, Twitter and Instagram and are not aware of the legal remedies that are available.

South Africa does not have specific legislation dealing with cyber bullying, which falls under the definition of harassment in terms of the Protection from Harassment Act 17 of 2011 (hereinafter referred to as “the Act”). Victims of cyber bullying can however rely on remedies offered by both our Criminal Law and/or Civil Law.

This article will however discuss the legal remedies available under our Civil Law.

What is cyber bullying?

Cyber bullying includes acts involving bullying and harassment through the use of electronic devices or technology which include the following methods:

  • Text messages;
  • Pictures or video clips;
  • Mobile telephone calls;
  • Emails;
  • Website and blogs;
  • Social networking sites such as Facebook, Twitter and Instagram. 

As previously stated, South Africa does not have specific legislation dealing with cyber bullying and falls within the definition of harassment. In terms of the Protection from Harassment Act 17 of 2011, harassment is defined as “directly or indirectly engaging in conduct that the Respondent knows or ought to know:

  • causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably –
    • following, watching, pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;
    • engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues;
    • sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to or brought to the attention of the complainant or a related person.”

What civil remedy do victims of cyber bulling have?

Anyone who believes they are being harassed by another person can apply for a Protection Order under the Protection from Harassment Act 17 of 2011. The Act provides a civil remedy to protect a person from behaviour which may not constitute a crime but may impact negatively on various rights of an individual.

A child under the age of 18, or a person on behalf of a child, may apply for a Protection Order. This can be done without the assistance of the child’s parents. If a person is not able to apply for a Protection Order for him – or herself, another person who has a real interest in stopping the harassment and the well-being of the person experiencing the harassment can apply for a Protection Order on that person’s behalf.

Procedures for applying a Protection Order in terms of Act

If a person is being harassed he or she may apply for a Protection Order against such conduct at the nearest Magistrate’s Court to the area in which he/she resides.

The process for applying for a protection order is by completing an application form, where the complainant is required to set out the reasons why a protection from harassment order is required and listing full details of all incidents of harassment they have experienced. The application form can be obtained at the nearest Magistrate Court or downloaded at http://www.justice.gov.za/forms/form_pha.html.

The complainant is also able to include the specific acts committed by the person causing the harassment to be listed in the protection order, as well as request the court to impose any additional conditions necessary to protect the Complainant and provide for the safety and wellbeing of that person.

The court may, after considering the application from the Complainant, issue an interim protection order against the Respondent notwithstanding the fact that the Respondent has not been given notice of the proceedings. The Court must, however, be satisfied that there is evidence that:

  • the Respondent is engaging, or has engaged in harassment;
  • harm is or may be suffered by the Complainant as a result of such conduct if a protection order is not issued immediately; and
  • the protection to be accorded by the interim protection order is likely not to be achieved if prior notice of the application is given to the Respondent.
  • This interim protection order, together with the record of evidence, must be served on the Respondent and must call on the Respondent to show cause on the return date why a final protection order should not be issued against him or her. An interim protection order takes effect.

Conclusion

It is important for cyber bullying victims to be aware that there are legal remedies available to them, not just within our Criminal Law but in our Civil Law as well.

SchoemanLaw Inc are a proud Members of the NSBC.