Is sharing naked photos of your kids child pornography?

(Update 2014-06-12): Professor James Grant, an Associate Professor of Law at the University of the Witwatersrand, has published an article on his site, titled “Child Pornography: Distribution by Parents“, in which he explores the implications of the Criminal Law (Sexual Offences) Amendment Act which also deals with child pornography. That Act also has a pretty broad definition of “child pornography”, possibly even broader than the Films and Publications Act, and is even more problematic for parents. I especially like his comment on the law (and not just because he mentions me):

This is an analysis of the law as it is. It is not a comment on what the law ought to be. I’m not sure our law should be this strict. But then I wish I didn’t live in a world full of depraved monsters. Paul Jacobson has already made all of the sensible remarks. Put the best interests of your child above any of your interests. All I can add is alot of scepticism about human nature. I have met and studied the wrong kind of people and am probably now speaking as a father of the two year old girl I looked after this morning. People are always amazed that their wonderful, kind and friendly neighbour turns out to be a monster. We must never forget for one moment that evil and depravity is banal and that monsters must live somewhere. But here is the problem, in our era of immediate communication and instant access, everyone is your neighbour.

You should definitely read his article too.


The National Prosecuting Authority’s recent warning that “any image of a naked child is child pornography” has, understandably attracted quite a bit of attention. Why is “any image of a naked child” pornography? According to the NPA’s Advocate Bonnie Currie-Gamwo –

… the reason for that is quite simple; it can be abused. What you do innocently, others take and they abuse it.

The NPA cautioned parents against publishing naked photos of their children online as the NPA considers this to be child pornography and the NPA may well prosecute parents who don’t heed the warning. This is problematic for both parents who have become accustomed to sharing photos of their kids growing up as well as photographers commissioned to do family shoots, in particular popular newborn baby shoots and who may have published some of the photos from these shoots in their online catalogues, with or without parents’ consent.

What is “child pornography”

Child pornography is a significant problem and the ease with which content can be shared online has only contributed to child pornography’s proliferation. That said, the NPA’s blanket statement that “any image of a naked child” is child pornography may be too broad. Unfortunately the NPA doesn’t seem to have specified which laws it interprets so broadly.

One possibility is that the NPA is referencing the Films and Publications Act which regulates “the creation, production, possession and distribution of films, games and certain publications” in order to –

  • provide consumer advice to enable adults to make informed viewing, reading and gaming choices, both for themselves and for children in their care;
  • protect children from exposure to disturbing and harmful materials and from premature exposure to adult experiences; and
  • make the use of children in and the exposure of children to pornography punishable.

The Films and Publications Act defines “child pornography” as follows:

child pornography” includes any image, however created, or any description of a person, real or simulated, who is, or who is depicted, made to appear, look like, represented or described as being under the age of 18 years—

(i) engaged in sexual conduct;
(ii) participating in, or assisting another person to participate in, sexual conduct; or
(iii) showing or describing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation;

The Act states that any person who –

(a) unlawfully possesses;
(b) creates, produces or in any way contributes to, or assists in the creation or production of;
(c) imports or in any way takes steps to procure, obtain or access or in any way knowingly assists in, or facilitates the importation, procurement, obtaining or accessing of; or
(d) knowingly makes available, exports, broadcasts or in any way distributes or causes to be made available, exported, broadcast or distributed or assists in making available, exporting, broadcasting or distributing,

any film, game or publication which contains depictions, descriptions or scenes of child pornography or which advocates, advertises, encourages or promotes child pornography or the sexual exploitation of children, shall be guilty of an offence.

Perspectives on “sexual exploitation” of children

The term “sexual conduct” includes a variety of sexual acts and this is the focus of the first two parts of the “child pornography” definition. These two parts are fairly clear but it is the third part which is possibly what the NPA is referring to –

showing or describing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation

The Act doesn’t define “sexual exploitation” so we need to understand what this term means in order to understand the scope of this part of the definition. The World Congress against Commercial Sexual Exploitation of Children defined the “commercial sexual exploitation of children” as:

sexual abuse by the adult and remuneration in cash or kind to the child or a third person or persons. The child is treated as a sexual object and as a commercial object.

The UK National Society for the Prevention of Cruelty to Children describes “sexual exploitation” as follows:

Child sexual exploitation (CSE) is a form of sexual abuse that involves the manipulation and/or coercion of young people under the age of 18 into sexual activity in exchange for things such as money, gifts, accommodation, affection or status. The manipulation or ‘grooming’ process involves befriending children, gaining their trust, and often feeding them drugs and alcohol, sometimes over a long period of time, before the abuse begins. The abusive relationship between victim and perpetrator involves an imbalance of power which limits the victim’s options. It is a form of abuse which is often misunderstood by victims and outsiders as consensual. Although it is true that the victim can be tricked into believing they are in a loving relationship, no child under the age of 18 can ever consent to being abused or exploited.

The United Nations’ task force for Protection from Sexual Exploitation and Abuse describes “sexual exploitation” in the following terms:

“The term “sexual exploitation” means any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another.” (UN Secretary-General’s Bulletin on protection from sexual exploitation and abuse (PSEA) (ST/SGB/2003/13))

These three explanations of “sexual exploitation” when it comes to children have common elements:

  • Manipulation, coercion or an abuse of a relatively vulnerable position for sexual purposes;
  • Children’s lack of legal, cognitive or even emotional capability to consent to being exploited sexually.

The idea of sexual exploitation lies at the core of what most people think about when the topic of “child pornography” is raised and it is a vile set of behaviours that do terrible harm to the most vulnerable members of our society. As a parent and as a human being, there is really no justification for this sort of conduct.

Any naked pictures?

The question, though, is whether a parent publishing naked photos of his or her children “amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation”? This question is distinct from a different question, namely whether parents should be publishing naked photos of their children, even if it isn’t child pornography? This second question has more to do with your children’s right to privacy and how you are effectively making decisions for them about how little privacy they will have in a connected world where the Internet doesn’t forget.

Returning to the “child pornography” issue (based on the Films and Publications Act, at any rate), the NPA’s contention that any image of a naked child is child pornography seems to be too broad. The NPA seems to be relying on the last part of the definition which whether the photos are “capable of being used for the purposes of sexual exploitation”? Or, as Advocate Currie-Gamwo put it:

… the reason for that is quite simple; it can be abused. What you do innocently, others take and they abuse it.

Regardless of how your child is depicted in the photo, if the photo can be abused by others, the NPA seems to be saying that falls within “purposes of sexual exploitation”. Going further, parents who publish these photos must be held accountable for the depraved “others” misuse of those photos of your children.

I don’t practice criminal law but that strikes me as a particularly chilling approach to criminal liability and it may not be consistent with how the Films and Publications Act describes the nature of the offence which I outlined earlier. The Act lists what seem to be a series of positive acts and references “knowingly” doing certain things. If a parent were to be held accountable because a paedophile downloaded a photo of his or her child and somehow used it “for the purposes of sexual exploitation”, I wonder whether the parent’s potential negligence could be used to hold the parent liable, even if the parent reasonably ought to have known that this was how the photos could have been misused?

Where does this leave us?

Aside from depictions of children engaged in or participating in forms of sexual conduct, the Films and Publications Act seems to target descriptions or depictions of children’s bodies that amount to actively manipulating, coercing or abusing children, in the process taking advantage of their vulnerability, for sexual purposes. This sort of conduct is clearly abhorrent.

Whether content amounts to child pornography isn’t always clear and there is certainly room for interpretation based on the context but classifying “any image of a naked child” as pornography seems to be interpreting the law too broadly, especially if the possible consequences for parents sharing these sorts of photos with friends and family with innocent intentions can be so severe.

What parents should seriously consider is whether they should share seemingly innocent photos of their naked or partially naked children online. As I mentioned above, the Internet doesn’t forget and when you publish photos of your children publicly, you make decisions about their present and future privacy for them without them being able to make a meaningful decision themselves.

Until this sort of issue reaches a court and is decided (possibly on an interpretation of the law or an assessment of the parents’ right to privacy as a counterweight to the NPA’s scrutiny), we are left with the NPA’s threats of dire action and deciding whether sharing photos of our children is worth the risk posed by an arguably overzealous group of prosecutors. In the context of that uncertainty, here are a few suggestions:

  1. If you feel the urge to publish a naked photo of your child, remember the NPA’s view that it is child pornography and also the reality that there are people who scour the Internet for photos of children to meet their depraved needs. Ask yourself if you want to fuel those needs for the sake of attention from your friends and family?
  2. If you decide to share photos of your children, limit who you share the photos with. It may not help you from the NPA’s perspective but limiting the photos to people who you know and trust keeps those photos out of the hands of those you don’t and adds a little more protection of your children’s privacy.
  3. Photos of children in sexually suggestive or explicit poses are not ok. The law clearly criminalises these sorts of photos so don’t take them and don’t share them.
  4. If you are a photographer and you have been asked to do a photo shoot where the kids may be naked (for example, a newborn shoot), perhaps refrain from publishing those photos or, at least, be very selective about which ones you publish as part of your portfolio. Make sure you ask the parents for consent before you publish any photos of their children (your blanket consent in your privacy policy is not enough) and that the parents understand this additional risk of criminal prosecution.

Regardless of whether the NPA’s interpretation is justified, one clear principle of our law when it comes to children is that we always ask what is in their best interests. Is publishing photos of your naked children in their best interests, or just in yours?

What the High Court decided about broadcasting the Oscar Pistorius trial

As you know, the Pretoria High Court granted the media permission to broadcast the upcoming Oscar Pistorius trial but don’t expect to see TV footage of Pistorius or his witnesses giving evidence. Judge President Mlambo has imposed a number of restrictions on the coverage you can expect in the coming weeks. The reasons for these restrictions stem from the considerations Judge Mlambo took into account and how the judge balanced a number of competing rights.

For one thing, you probably won’t see any video of Oscar Pistorius’ or his witnesses’ testimony (although you may hear it on radio). You won’t see close-ups either. This decision is more about upholding rights than it is about the hype.

As you know, the Pretoria High Court granted the media permission to broadcast the upcoming Oscar Pistorius trial but don’t expect to see TV footage of Pistorius or his witnesses giving evidence. Judge President Mlambo has imposed a number of restrictions on the coverage you can expect in the coming weeks. The reasons for these restrictions stem from the considerations Judge Mlambo took into account and how the judge balanced a number of competing rights.

Weighing up competing rights

The various considerations and rights are summarised in the opening paragraph of the judgment:

The electronic, broadcast and print media have approached this Court to grant them permission to broadcast the entire criminal proceedings in the matter of The State vs Oscar Leonard Pistorius (Pistorius). They seek permission to do this through audio, audio-visual and photographic means. The matter brings into sharp focus the interface between the functioning of the criminal justice system on the one hand and the quest by the media and press to participate in that system on the other hand. This interface finds expression in a number of critical constitutional rights that are seemingly on a collision course with one another. These are the rights of an accused person and the prosecution to a fair trial on the one hand and the freedom of expression rights of the media as well as the open justice principle.

Judge Mlambo highlighted the media’s importance in a democratic society and quoted a number of court decisions dealing with the freedom of the press in the context of court proceedings. In the case of Khumalo and Others v Holomisa, the Constitutional Court said the following:

The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected.

Broadcasting the trial (and allowing for broader coverage of any trial) is closely linked to not only freedom of expression but also the principle of open justice. As Judge Mlambo pointed out –

Our Constitution is underpinned by a number of values and for purposes of this case I refer to openness and accountability. In this regard it is also important to take cognizance of the fact that sections 34 and 35(3)C) make it very clear that even criminal proceedings in this country are to be public. The basis for this is that courts of law exercise public power over citizens and for this it is important that proceedings be open as this encourages public understanding as well as accountability.

The Judge went on to quote from the case of S v Mamabolo in which the Constitutional Court said the following:

Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticize, applaud or castigate the conduct of their courts. And, ultimately, such free and frank debate about judicial proceedings serves more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the important attributes prescribed for the judiciary by the Constitution

That said, this isn’t just about the media’s interests. Pistorius’ legal team argued that broadcasting the trial would compromise his right to a fair trial. He went as far as to argue that if the trial is broadcast, he would be denied a fair trial. His concerns were summed up as follows:

Pistorius contends that the live broadcasting of his criminal trial, through audio (radio), audio-visual (television) and still photographic means, will infringe his right to a fair trial. His view is that the mere knowledge of the presence of audio visual equipment, especially cameras, will inhibit him as an individual as well as his witnesses when they give evidence. He has also asserted that his Counsel may also be inhibited in the questioning of witnesses and the presentation of his case. He further is of the view that covering his trial as is sought by the applicants will enable witnesses still to testify to fabricate and adapt their evidence based on their knowledge of what other witnesses have testified. In his view the requested broadcasting of his trial will have a direct bearing on the fairness of the trial and contends that should the relief be granted he will most certainly not enjoy a fair trial.

The Judge accepted that Pistorius’ concerns are valid and set about balancing his right to a fair trial with the media’s right to freedom of expression and the principle of open justice. This process doesn’t involve placing more value in one or another right over the others but rather as the Court in Midi Television (Proprietary) Limited v Director of Public Prosecutions proposed –

Where constitutional rights themselves have the potential to be mutually limiting – in that the full enjoyment of one necessarily curtails the full enjoyment of another and vice versa – a court must necessarily reconcile them. They cannot be reconciled by purporting to weigh the value of one right against the value of the other and then preferring the right that is considered to be more valued, and jettisoning the other, because all protected rights have equal value. They are rather to be reconciled by recognising a limitation upon the exercise of one right to the extent that it is necessary to do so in order to accommodate the exercise of the other (or in some cases, by recognising an appropriate limitation upon the exercise of both rights) according to what is required by the particular circumstances and within the constraints that are imposed by s 36.

Judge Mlambo was also cognisant of the risks with televised broadcasts and referred to the judgment of the Constitutional Court in South African Broadcasting Corporation Limited vs The National Director of Public Prosecutions where the Court said the following:

Before turning to the question of the order, we consider it helpful to set out some considerations which in our view need to be taken into account in the future when the question of televising court proceedings is raised. The time has come for courts to embrace the principle of open justice and all it implies. However, in our view, it should be borne in mind that the electronic media create some special difficulties for the principle of open justice. Broadcasting, whether by television or radio, has the potential to distort the character of the proceedings. This can happen in two ways: first, by the intense impact that television, in particular, has on the viewer in comparison to the print media; and second, the potential for the editing of court proceedings to convey an inaccurate reflection of what actually happened. This is particularly dangerous given that visual and audio recordings can be edited in a manner that does not disclose the fact of editing. This distorting effect needs to be guarded against. It arises not so much from the presence of cameras and microphones interfering with the court proceedings themselves. But more dangerously, it may arise from the manner in which coverage can be manipulated, often unwittingly, to produce communications which may undermine rather than support public education on the workings of the court and may also undermine the fairness of the trial. Such distortions are much more likely to arise from edited highlights packages than from full live broadcasts.

What was interesting about Judge Mlambo’s judgment is how the judge differentiated between the impact radio and TV could have. In striking a balance between these competing considerations, Judge Mlambo made a series of orders.

What you will be able to see and hear

For starters, TV broadcasts will not include Pistorious’ or his witnesses’ testimony. Judge Mlambo ruled on this aspects as follows:

In balancing the competing rights at stake it is my view that the objection by Pistorius regarding the audio-visual recording as well as the still photography of him and his witnesses should not be taken lightly. It was argued on his behalf forthrightly that the inhibitory effect of audio-visual recording equipment, in particular the knowledge and awareness thereof by himself and his witnesses, will be great when they give their evidence. This potential was recognized by our highest court in the SABC vs NDPP. For this reason I am of the view that the audio-visual or televising and still photography of Pistorius and his witnesses when they testify be disallowed as this has the potential to deprive him of a fair trial on the grounds spelt out in argument on his behalf. I am persuaded that there is merit in his fears and that of his witnesses that they may be disabled somewhat in giving evidence.

TV broadcasts will likely include much of the State’s experts and witnesses although the Court made allowance for concealing witnesses’ identities if they require this. You will also be able to follow legal arguments and similar aspects of the trial.

On the other hand, you will probably be able to listen to most of the trial on radio as, Judge Mlambo reasoned, radio doesn’t have quite the same impact as TV or TV’s more problematic features in this sort of situation. The Court also imposed a number of restrictions on still photography which exclude photography of Pistorius, his witnesses and other witnesses who object. The judgment goes into quite a bit of detail about which cameras may be placed where, how they may be operated and supervised and more. Something else you won’t see are emotional close-ups of anyone. Those have also been prohibited.

Once again, be mindful of what you tweet

The point of allowing the trial to be broadcast is not to play to the hype surrounding the trial but more to give effect to the various rights and public policy considerations involved here (at least from the Court’s perspective). Judge Mlambo made a special point of addressing concerns about the planned coverage which everyone should take a few moments to consider:

I must hasten to mention that the decision I have come to should be embraced with the objective I have spelt out in this judgment. I mention this as it has come to my attention that there are media houses that intend to establish 24 hour channels dedicated to the trial only and that panels of legal experts and retired judges may be assembled to discuss and analyse the proceedings as they unfold. Because of these intentions, it behoves me to reiterate that there is only one court that will have the duty to analyse and pass judgment in this matter. The so-called trial by media inclinations cannot be in the interest of justice as required in this matter and have the potential to seriously undermine the court proceedings that will soon start as well as the administration of justice in general.

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p>In other words, be careful what you say online, in public discussions and, especially, if you are commenting on the case as part of the planned public broadcasts. As the judge said, there is one court that will adjudicate this matter and made any determinations of guilt. As far as the law is concerned, Pistorius is innocent unless the Court subsequently finds otherwise.

Your Oscar Pistorius conjecture could get you sued

In all likelihood, most of the conjecture about Pistorius’ guilt is defamatory and the question is whether those defamatory statements are justifiable and that remains to be seen. If you are engaged in a debate about the case, it may be prudent for you to be measured in your statements and avoid potentially prejudicial declarations.

The Oscar Pistorius case has enthralled South Africans who are torn between supporting their hero and their disappointment at seemingly being let down by a South African icon. The discussion has practically overwhelmed my Twitter stream and people have expressed opinions on Pistorius’ guilt and innocence well before a court has reached any conclusions of its own.

#OscarPistorius Today’s lesson: Don’t rush to conclusions. Wait for both sides. Examine everything.

— Alex Eliseev (@alexeliseev) February 20, 2013

While our Bill of rights gives us the right to express our opinions, our rights are not absolute and, in the context of defamation, the defamed person’s right to dignity often holds sway unless there are clear public policy reasons to allow the comments to stand. In this tragic case, Pistorius stands accused of murder but he hasn’t been found guilty. He is still, in our law at least, innocent. We don’t handle criminal law and leave the analysis of the criminal legal issues to the likes of David Dadic who is doing a far better job explaining some of the legal technicalities. That said, drawing conclusions about Pistorius’ guilt and publishing those conclusions online can lead to a defamation claim down the line.

In all likelihood, most of the conjecture about Pistorius’ guilt is defamatory and the question is whether those defamatory statements are justifiable and that remains to be seen. If you are engaged in a debate about the case, it may be prudent for you to be measured in your statements and avoid potentially prejudicial declarations. As William Booth, a criminal law attorney commented today for East Coast Radio

“I can understand there [are] people that are expressing horror at what happened, there are also people who are supporting Mr. Pistorius and saying he should be released on bail,” he said.

“So everything, I feel, should be said and done in a proper and objective manner, and not that one gets carried away and say things that you may actually regret later.

“Too much has been said that has no factual basis.”

Marketers who improperly use company names could face criminal and civil penalties

Anyone running a social media profile on a client’s behalf should be very careful when tweeting or posting on the client’s behalf. The consequences of careless references to or variations of a company’s name could be severe under certain understated provisions of the new Companies Act.

Apollo Director Phillips Monitors Apollo 11 Pre-Launch Activities

The Companies Act’s provisions

Section 32 of the Companies Act deals with “[u]se of company name and registration number” and subsections 3 and 5 are the clauses social media practitioners should be aware of:

(3) A person must not—

(a) use the name or registration number of a company in a manner likely to convey an impression that the person is acting or communicating on behalf of that company, unless the company has authorised that person to do so; or
(b) use a form of name for any purpose if, in the circumstances, the use of that form of name is likely to convey a false impression that the name is the name of a company.

(4) …
(5) Contravention of subsection (1), (2), (3) or (4) is an offence.

The term “person” in the Companies Act “includes a juristic person”. In our law there are two basic types of “persons”. We have natural persons which are human beings and juristic persons which are corporate entities like companies and close corporations.

What this means is that any person who uses a company’s name that suggests that the person is communicating on the company’s behalf and isn’t actually authorised to do that will be committing an offence under the Companies Act. That is fairly straightforward but subsection 3(b) is not nearly as clear although can be even more problematic for careless marketers. It uses the phrase “form of name” which is only used in this sub-section of the Act. The word “form” is defined fairly extensively in the Oxford Dictionary of English, and includes the following definitions:

  • the visible shape or configuration of something
  • a particular way in which a thing exists or appears
  • any of the ways in which a word may be spelled, pronounced, or inflected

It appears that “form of name” includes both variations of the company name (for example, “Pick ‘n Pay” as a commonly used variation of Pick n Pay Stores Limited or Pick n Pay Holdings Limited or “Woolies” as a common reference to Woolworths (Proprietary) Limited or Woolworths Holdings Limited – assuming you know which one you are referring to) and it may even include variations of the company’s trade marks, such as logos, and other representations of the company’s name. Assuming this is how the clause will be interpreted, subsection 3(b) criminalises a variation of a company’s name which conveys “a false impression” that the variation “is the name of a company”. The idea here may be to ensure that company’s names and branding is accurately and reliably conveyed to the public and the risk of confusion minimised.

Section 218 deals with “[c]ivil actions” (as opposed to the criminal offences that a violation of section 32 would constitute) and subsections 218(2) and (3) state the following:

(2) Any person who contravenes any provision of this Act is liable to any other person for any loss or damage suffered by that person as a result of that contravention.
(3) The provisions of this section do not affect the right to any remedy that a person may otherwise have.

These two subsections in section 218 introduce specific liability for any “loss or damage” caused by “[a]ny person” and suffered by “any other person” and doesn’t exclude whatever other remedies “a person” may have in law. This clause’s scope is pretty broad, may be open to constitutional scrutiny, and opens the door to civil liability in the form of a financial sanction flowing from the contravention of the Companies Act in addition to whatever other remedies may be available.

What does this mean for marketers?

Drawing all of this together, a marketer or other social media practitioner could find him or herself being charged with a criminal offence and sued for monetary damages for either using a company’s name in such a way as to falsely suggest the marketer or practitioner is authorised to represent the company concerned or where the marketer or practitioner uses a “form” of a company’s name that is not the company’s actual name and, instead, falsely creates the impression that it is. This sort of issue could easily arise in the manner in which a brand’s Twitter or Facebook pages are operated (both how they are set up and presented to the public, fans and followers as well as what is published in those streams) as well as out of a marketer’s or practitioner’s efforts to promote the brand.

One specific challenge tweeting under a brand’s name without drawing a distinction between the person doing the tweeting and the brand’s official communications where the tweeter posts updates that don’t fall within the tweeter’s mandate (for example, a personal comment that isn’t sanctioned by the company). Another is using an unauthorised “form” of a company’s name in a Facebook Page update or blog post, for example. These sorts of mistakes can be made but they potentially carry severe consequences (an offence could mean a fine or imprisonment not exceeding 12 months, or both). Given the definition of “person”, agencies that operate social media profiles can also find themselves in trouble.

Managing these risks

Managing these risks and still diligently promoting a brand can be accomplished. Agencies must have clearly defined roles and parameters and these must be effectively communicated to their staff and compliance with these restraints must monitored. This means being specific with clients in agreements and communications regarding the agency’s use of a client’s brand and the manner in which the agency’s staff will communicate with fans and followers on the client’s behalf. Agency staff should also draw clear distinctions between posts intended to be associated with the client and its brand, on the one hand, and posts which are not. There should be no confusion between a company or its brand, on one hand, and the people promoting it behind the scenes.

Appropriate risk management steps should be taken from the start and maintained on an ongoing basis, taking into account changing circumstances, instructions and feedback received from the public, the client and other relevant stakeholders. Not making the effort to better manage these risks could result in more serious consequences down the line than the upfront cost of developing and implementing the appropriate framework.

The controversial @pigspotter and Metro police

A Twitter user known as @pigspotter (aka “Cliff”) is making waves in local law enforcement. If you are not one of his 6 138 followers (at 10:26 SAST – the count was at 6 007 about an hour ago) then you may not be familiar with what this popular tweeter does. As his bio explains, its about notifying other road users about police road blocks and traps:

Let’s help each other expose where cops are hiding, trapping and roadblocking daily. I don’t follow any1 to avoid getting unusable tweets. Watch this space 😉

PigSpotter has become popular in a sort of “stick it to the Man” sort of way and seems to appeal to motorists who are tired of being harassed by ethically questionable police officers on the roads who have also acquired something of a reputation for corruption (irrespective of whether this is a fair representation of either the South African Police Service or local Metro police departments). Of course PigSpotter also has a substantial appeal to motorists who flout traffic laws and look for opportunities to avoid being caught and brought to account. This is also where the conflict with local law enforcement comes into play.

Metro police are fuming and believe PigSpotter is acting illegally. There is a basis for this argument. The National Land Transport Act of 2009, for example, regards a person as having committed an offence if –

.. the person wilfully obstructs or hinders an authorised officer who is discharging his or her duties …

I haven’t reviewed transporation legislation in much detail but I am sure there are similar provisions in other legislation at both national and local levels which would regard similar conduct as constituting a criminal offence. On the other side, there are freedom of expression considerations which come into the mix. The right to freedom of expression provides as follows:

16 Freedom of expression

(1) Everyone has the right to freedom of expression, which includes-

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to-

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

This isn’t the end of the matter though. Section 36 of the Bill of Rights is titled “Limitation of Rights” and it provides as follows:

36 Limitation of rights

(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into account all
relevant factors, including-

(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights.

As you can see, rights in the Bill of Rights are not absolute and there are often more important considerations which justify limitations of these rights. In this case PigSpotter’s right to express himself through tweets about police road blocks and traps would be weighed up against the importance of curbing traffic offences, many of which endanger other motorists’ or pedestrians’ personal safety. I can see a compelling argument for the limitation of PigSpotter’s right to tweet about these measures when contrasted with public safety considerations.

One perspective on PigSpotter’s tweets is that they alert motorists to speed traps and road blocks and cause more motorists to drive more carefully, armed with the knowledge that the police are nearby. This has some value and is comparable to the effect of visible traffic cameras on the side of the roads – motorists slow down when they see them. The other perspective is that motorists alerted to police presences will take alternative routes and drive recklessly on unmonitored routes. A drunk driver who would have otherwise been caught by the Metro police before harming anyone may take an alternative route and kill someone.

Metro Stops Bikers In Their Tracks

So what can be done? Law enforcement faces a challenge here. PigSpotter is using Twitter to publish his warnings and it falls to law enforcement officials to request information about PigSpotter from Twitter. The idea would presumably be for law enforcement officials to request PigSpotter’s personal information which he disclosed when creating his account with Twitter. Twitter caters for this in its privacy policy and cautions as follows:

Law and Harm: We may disclose your information if we believe that it is reasonably necessary to comply with a law, regulation or legal request; to protect the safety of any person; to address fraud, security or technical issues; or to protect Twitter’s rights or property.

The challenge, of course, is that PigSpotter may not have disclosed any useful personal information when he created his account and even if law enforcement officials can persuade Twitter to hand over his personal information, it may not be enough to help identify and hold PigSpotter accountable for his tweets.

So law enforcement is back to where they started and absent other means to identify PigSpotter, he may be able to continue tweeting and potentially creating opportunities for traffic offences and related injuries and deaths. The solution may be in PigSpotter’s followers’ hands (6 228 as I type this). PigSpotter’s influence depends largely on his following. If his followers recognise the risk created by his tweets, perhaps they should simply not follow him or republish his tweets? That would probably be a next best solution for local law enforcement and quite possibly not a likely scenario. As I mentioned above, PigSpotter is popular with disaffected motorists. PigSpotter may be stopped but another tweeter could pop up in a matter of minutes. Taking it a few steps further, the community could co-ordinate their efforts and create large and distributed warning networks which would be even more difficult for law enforcement to regulate.

Perhaps a more sustainable solution is for local law enforcement to focus their efforts on winning hearts and minds instead?

6 258 followers and counting …


Photo credit: Metro Stops Bikers In Their Tracks by Aquila – licensed CC BY NC 2.0

Using Facebook isn’t a prison sentence

This post was originally published on BizCommunity here. This is a slightly different version and is also published under a Creative Commons license (like all my articles on this site – for more information scroll down to the this site’s footer) which means you can quote from it and share it as long as you comply with the terms of the license.

It is tempting to think that using Facebook will land you in prison, especially with all the media attention on the Duane Brady case in the Kliptown Magistrates Court. The simple truth is that sticking to a few simple rules should help you avoid that unpleasant experience of receiving a strongly worded letter from an attorney or, worse, an unwelcome visit from an unsympathetic police officer keen on dragging you off to a holding cell for the weekend.

Defamation is more common in our general experience and in our conversations about the risks of expression online. Some people refer to this phenomenon as libel or even slander but the correct term in South African law is defamation. For the most part defamation occurs when someone publishes (this isn’t just a printed publication but really means saying something in some medium or another to two or more people) something that tends to demean another person in the estimation of her peers. We may differ as to how we define it but we know it when we experience it. Proceedings to remedy defamation are conducted in our civil courts.

The Brady case, on the other hand, is a criminal case in which he has been charged with crimen injuria. This is related to but different to defamation (other jurisdictions may refer to this as libel). Crimen injuria includes some of the elements we see in defamation as well as privacy concerns. One explanation of crimen injuria is that it is the unlawful and intention impairment of another person’s dignity and privacy.

Both offences share common threads which are important to bear in mind when plotting a course through this legal landscape. Generally speaking you are heading for trouble if you publish or otherwise speak about another person in such a way that your expression offends, demeans and generally undermines that person’s dignity. Now, not every form of expression which achieves this is actionable defamation or crimen injuria but it is a helpful starting point. Another thing that is important to note is that even if a statement or publication is defamatory, there are a number of justifications available for defamation (although not so much in the case of crimen injuria). These justifications include the fact that the publication was true and in the public benefit; made in jest or sudden anger or fair comment.

There is a sense that because the Brady case concerns Facebook that this is a completely new set of circumstances and requires new law to address it. The social Web has brought with it a sense that the Internet is a lawless free-for-all where anyone can do anything with impunity. Unfortunately (or fortunately, depending on your perspective), this is not the case at all and, as I pointed out in my article on the topic on my firm’s website, the usual rules apply to these changing circumstances (although I do expect to see the law develop to more fully cover these new media).

So what can you do to avoid being locked up or being sued for everything? To begin with, don’t click “publish” if you have just unloaded all your frustration and anger in the heat of the moment. Sleep on it, tone down the language and try stick to verifiable facts. If you are going to express your opinion (and a lot of what you see online these days is opinion), make sure people understand it is your opinion and keep it balanced and fair. Just because you can destroy someone’s reputation, doesn’t mean you can or should.

Remember that this doesn’t just apply to Facebook Wall posts and blog posts, it also applies to comments you may leave on a website or messages you may post on services like Twitter or send by email. Although not a material factor, the size of the potential audience is also relevant because it magnifies the likely harm. It may seem gratifying to tell all 600 of your Twitter friends what a reprobate your former best friend is but the reality of a summons or a pair of handcuffs tends to put that moment of inspiration into perspective.

To quote some movie character: “Be cool”!

Eldorado Park man prosecuted for criminal defamation on Facebook

The Times has reported that Duane Brady, an Eldorado Park resident, has been charged with crimen injuria in the Kliptown Magistrate’s Court on the basis of derogatory comments he posted on Facebook (his profile seems to have been removed or disabled). (Disclosure: Sashni Pather approached me to comment on the story and I have been quoted in the article)

As with any online publishing platform, Facebook can be used to defame people. In this particular case Brady was charged with a criminal version of defamation called crimen injuria which is basically the unlawful and intention impairment of another person’s right to “freedom from insulting, degrading, offensive or humiliating treatment and to freedom from invasions of privacy” (quoting from Principles of Criminal Law, 2nd edition, by Jonathan Burchell and John Milton). Crimen injuria goes beyond defamation in civil law and incorporates a privacy violation as well. Being a criminal process, it is prosecuted by the State with the person whose rights are infringed playing the role of complainant and witness.

As Peter Grealy pointed out in the article, this offence is not new. What is new is an offence like this being prosecuted based on a publication on a social network like Facebook. At the same time this is hardly going to be the last time this occurs and we can expect to see more cases like this as more and more people join social networks and become aware of their rights. We are also likely to see cases involving defamation and invasion of privacy in civil courts too. Online publishing platforms like social networks potentially have a substantial audience and the prejudice a person can suffer when defamed or when his/her privacy is invaded can be profound.

Tips:

If you find yourself a victim of defamation or an invasion of your privacy you may want to keep a record of the offending material, whether it be in the form of a printout or a digital version of the offending material. If the material is posted online, keep a record of the web page it was located on together with your records. Most browsers offer the option to print a page with the web page address and the time and date the print out was made. The same may apply to digital captures of the material concerned (Mac users can print to PDF from their print menus so use this option).

It is also very helpful to prepare a statement of your own recounting the events leading up to and including the publication of the offending material. Prepare this in your own words (plain language) as if you are writing a story. Start at the beginning and keep going until you have a full account of the history of the matter. Don’t worry about using any legal terms, just the plain facts.

If you want to press charges of crimen injuria with the police, take your statement and a copy of your evidence to your local police station and lay a charge with them. On the other hand, if you would like to sue the other person for defamation, invasion of privacy or some other civil offence, take your statement and documentary evidence to your attorney. Being prepared really helps!