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?

Are banks assessing your creditworthiness based on your social media profiles?

GigaOm has an interesting article titled “New breed of lenders use Facebook and Twitter data to judge borrowers” which looks at a growing trend in financial services industries. Banks and other lenders are starting to look at customers’ social media profiles when assessing their needs and the risks they may pose as debtors. An emerging South African consumer protection framework could support extension of this behaviour to South Africa, if it hasn’t already been adopted.

GigaOm has an interesting article titled “New breed of lenders use Facebook and Twitter data to judge borrowers” which looks at a growing trend in financial services industries. Banks and other lenders are starting to look at customers’ social media profiles when assessing their needs and the risks they may pose as debtors. An emerging South African consumer protection framework could support extension of this behaviour to South Africa, if it hasn’t already been adopted.

At first glance this may seem somewhat outrageous (and it reminds me of the prospect of insurers using similar data to assess and modify premiums for insurance cover) but this sort of behaviour could well be supported by new consumer protection frameworks being adopted in South Africa.

The Treating Customers Fairly framework is in the process of being adopted by South African financial institutions:

is an outcomes based regulatory and supervisory approach designed to ensure that specific, clearly articulated fairness outcomes for financial services consumers are delivered by regulated financial firms.

Participating firms are required to show they deliver six outcomes which include these two:

  • Products & services marketed and sold in the retail market are designed to meet the needs of identified customer groups and are targeted accordingly; and
  • Where advice is given, it is suitable and takes account of customer circumstances

These two criteria could well lend support for a similar practice of analysing customers’ social media profiles and streams when assessing customers’ needs and risks under the guise of improved compliance with Treating Customers Fairly.

Is privacy a recent fiction or a neglected human right?

Google’s Chief Internet Evangelist, Vint Cerf, recently spoke at the FTC’s Internet of Things Workshop where he suggested that privacy is a recent construct our society created when technology made it possible. Is privacy an anomaly, as he suggests, or is it an important right which technology has enabled and which we are neglecting to the point where we are negating it so we can share more stuff with each other?

Google’s Chief Internet Evangelist, Vint Cerf, recently spoke at the FTC’s Internet of Things Workshop where he suggested that privacy is a recent construct our society created when technology made it possible. According to The Verge’s coverage of his speech, privacy wasn’t a given just a few decades ago –

Elaborating, he explained that privacy wasn’t even guaranteed a few decades ago: he used to live in a small town without home phones where the postmaster saw who everyone was getting mail from. “In a town of 3,000 people there is no privacy. Everybody knows what everybody is doing.”

Rather than privacy being a fundamental right which is being threatened by technology (as we’ve seen through the recent government surveillance revelations courtesy of Edward Snowden), he argued that technology has both enabled what we take for granted as privacy today and, at the same time, is enabling us to erode it. I don’t believe he was arguing that privacy as a preference for being secretive is a recent invention. I suspect people have always tended to have a sense of their private spaces and have protected that in varying degrees, to the extent they have been able to. What is fairly recent is this idea of a right to privacy which is protected by legal authority.

Our right to privacy in South Africa has evolved through our common law and was entrenched as a fundamental right in our Constitution. The right to privacy is described in section 14 of the Constitution:

Everyone has the right to privacy, which includes the right not to have-

(a) their person or home searched;

(b) their property searched;

(c) their possessions seized; or

(d) the privacy of their communications infringed.

It is not an absolute right but it is an important one. It is also a right which we have to be mindful of and actively protect. What has been happening, instead, is that we have become accustomed to abdicating our right to privacy in exchange for access to online services and the ability to share more stuff with each other. This isn’t an egg we can unscramble. As Cerf pointed out (courtesy of The Verge) –

”Our social behavior is also quite damaging with regard to privacy,” Cerf says. He gives an example how a person could be exposed doing something that they wanted to keep secret by being tagged in the background of a stranger’s photo — a photo they never expected to be caught in. “The technology that we use today has far outraced our social intuition, our headlights. … [There’s a] need to develop social conventions that are more respectful of people’s privacy.”

This touches on my 2012 post titled Changing privacy norms where I wrote about our changing understanding of what privacy is and how our online activities are shrinking our expectations of privacy. Most people still think privacy is about secrecy but it is really more about how much control you have over your personal information which you have disclosed and continue to share? The more we share with each other online, the less control we have and virtually every controversy over an apparent privacy violation by a social media service is actually a further consensual encroachment into what remains of our private spaces that we have enabled.

Privacy may have been a very different sensibility before 20th century technologies enabled more effective protections and modern laws created more clearly defined privacy rights but we are complicit in continued privacy erosion through our digital tools. The big question is how aware we are of this, its implications for our future society and whether we are comfortable with the very public future that lies ahead?

The growing importance of online sentiment to stock markets

The notion that online sentiment is a critical risk factor, especially in the context of stock markets and share trades, is gaining momentum. Australian Dionne Lew, the CEO of The Social Executive, wrote an article for Leading Company titled “Social media: Love it or loathe it, the ASX says you can no longer ignore it” in which she highlights the increasing impact online sentiment in services like Twitter and blogs (still relevant and important after all these years) has on companies’ bottom lines, particularly in the context of stock exchanges.

The notion that online sentiment is a critical risk factor, especially in the context of stock markets and share trades, is gaining momentum. Australian Dionne Lew, the CEO of The Social Executive, wrote an article for Leading Company titled “Social media: Love it or loathe it, the ASX says you can no longer ignore it” in which she highlights the increasing impact online sentiment in services like Twitter and blogs (still relevant and important after all these years) has on companies’ bottom lines, particularly in the context of stock exchanges. This trend is so important that the Australian Stock Exchange has updated its disclosures Guidance Note for companies listed on the ASX:

Working closely with the Australian Securities and Investment Commission, the ASX recently updated its guidance on disclosure), advising companies to monitor online for sensitive information to ensure that the market trades fully informed. Further, company secretaries must consider its impacts with respect to risk.

The updated Guidance Note specifically caters for social media and recommends that companies monitor the social Web for mentions and sentiment that could have an impact on their activities. For example, on the topic of a trading halt, the Guidance Note contains the following advice at page 17 (emphasis added):

ASX would strongly encourage an entity which is unsure about whether it should be requesting a trading halt or voluntary suspension to cover the period required to prepare an announcement, to contact its listings adviser at ASX to discuss the situation.

If the entity decides not to request a trading halt or voluntary suspension to prevent the market trading ahead of an announcement, ASX would also strongly encourage the entity to monitor:

  • the market price of its securities;
  • major national and local newspapers;
  • if it has access to them, major news wire services such as Reuters and Bloomberg;
  • any investor blogs, chat-sites or other social media it is aware of that regularly post comments about the entity; and
  • enquiries from analysts or journalists,

for signs that the information to be covered in the announcement may have leaked and, if it detects any such signs, to contact ASX immediately to discuss whether it is appropriate to request a trading halt.

A footnote (footnote 63) on the social media reference item points out the following:

For example, the “shareholder action” blogs that exist for some listed entities. A listed entity which is the subject of such a blog would often be aware of that fact from communications with its shareholders and, in ASX’s experience, would generally be monitoring the blog for an insight into what its shareholders are saying about it. Some (generally larger) listed entities would also be monitoring certain investor blogs, chat-sites and other social media sites through their investor relations function, again for the purposes of understanding what is being said about them on those sites. Where a market sensitive announcement is pending, ASX considers that the entity should also be
monitoring these sites for signs that the information in the pending announcement may have leaked.

Another example of where the Guidance Note caters for social media is in the context of information leaks before information is submitted to the ASX on page 27 of the Guidance Note:

4.17 What if information is released to someone else before it is given to ASX?

If a listed entity becomes aware that market sensitive information which has not been given to ASX under Listing Rule 3.1 has been released to a section of the market (eg, at an investor or analyst briefing or at a meeting of security holders) or to a section of the public (eg, at a media briefing or through its publication on a website or in
social media), the entity should immediately give the information to ASX under Listing Rule 3.1 in a form suitable for release to the market.

Lew makes an important point we have made previously, namely that companies have to recognise that online sentiment must be addressed as part of a broader corporate risk management strategy and not simply relegated to a marketing department:

It’s a lay down misère that companies must be where their customers are and there is increasing awareness that peer-to-peer recommendations on these platforms carry weight.

As a result, the concessions we’ve seen around social media use have been largely in the marketing and sales space.

But this approach fails to recognise that the impacts of a channel that is ubiquitous cannot be managed in or by silos, but must be wholly integrated into corporate strategy, including governance and risk.

Online information is unbounded; the speed at which it travels leads to direct market impacts (the executive and board domain).

More and more companies have experienced sharp share price drops after rumours spread across the social Web and frequently far faster than they can respond meaningfully to the sentiment. These companies find themselves doing more damage control than prevention and the growing use of automated and semi-intelligence systems to process trades will only aggravate the situation further.

An Australian example Lew cites involves Whitehaven Coal:

For example, in January this year, the share price of Whitehaven Coal dropped 6% after a fake press release lit up the online networks.

The release claimed to be from ANZ overturning a recent loan to Whitehaven that would have had a significant impact on its Maules Creek project.

Both Whitehaven and ANZ later confirmed the hoax, but not before $314 million was wiped off the share price and the company was placed in a trading halt.

What does this mean from a risk and governance perspective in South Africa? Much the same as it does elsewhere: boards should be paying attention to what is being said about their companies online. It appears that one of the reasons this isn’t happening is that directors are unfamiliar with the proliferation of social sharing services and may even tend to perceive them as being more the domain of younger generations sharing animated cat images than as having a meaningful impact in the business world. This is risky thinking and is increasingly and demonstrably inaccurate.

Reputation Management expert, Deon Binnerman, recently pointed to a post on ReputationXchange titled “Lessons from politics for reputation-observers” which highlights the risks of not paying attention to stakeholders:

Stakeholders have a much clearer stake in the brands and reputations of the companies they support and are now the first to object to corporate misbehavior, unfairness or lack of transparency. And they can assert themselves whenever they want now, regardless of news cycle. Reputations are increasingly being torpedoed because consumers want their say in how companies behave and what they do. When that wish is not granted or they are not listened to, companies will regret it and pay the price.

There is a host of indicators that this is as real a concern for South African businesses and the trend is only going to grow. Reputational harm is becoming more severe and bottom line impact is occurring more frequently. Certainly there are events which tarnish a brand’s reputation and are otherwise momentary but as the social Web becomes a dominant communications platform, the risks of more enduring events increase, as does the tangible harm.

Samantha Buchler recently wrote an article for the Jacobson Attorneys blog about the Business Judgment Rule and its benefits for directors facing liability under the South African Companies Act. She points out that Companies Act requires directors to exercise a “degree of care, skill and diligence that may reasonably be expected” of them. One of the factors in determining whether a director has done this is whether the director has “taken reasonably diligent steps to become informed about the matter”. As the impact of online sentiment on a company’s reputation and financial wellbeing is better documented and publicised, directors who fail to take “reasonably diligent” steps to familiarise themselves with online reputational risks could find themselves liable for when risks they could otherwise have anticipated actually occur and harm their companies.

For more on this topic, take a look at a few of the articles we’ve published on this site:

Defamation law’s chilling effects on social media

If you look to recent cases, you generally see this issue arising in the context of politicians and sports personalities whose indiscretions are published online (usually Twitter) and disseminated rapidly. Embarrassed plaintiffs and applicants approach courts, indignant, and seek to silence the debates and expressions of schadenfreude. The courts, applying the law as they understand it to this new medium, grant orders which sometimes just seem to be out of touch with new realities. What concerns me about these cases is that simply applying these legal principles to this new, unprecedented landscape can, and often does, have a chilling effect on freedom of expression. 

Jamie's 3rd birthday party photos-24

Quirk invited me to listen to and watch Emma Sadleir speak about social media and the law last Friday. She took the Quirk team and a few guests (which included me) through South African law on defamation and how it related to social media. For the most part she dealt with fundamentals in our law and, at one point, she pointed out that, in her view, retweeting a defamatory tweet exposed the re-tweeter to a defamation claim alongside the original poster.

@emmasadleir “anyone can be sued in ‘chain of publication’”… “but there is a ‘innocence of dissemination’ defence” #UoQJozi

— justinspratt (@justinspratt) March 1, 2013

I don’t necessarily agree with Emma’s views but I agree that a court will likely see retweets as endorsements and will hold re-tweeters (and equivalent users on other platforms) liable for defamation because they clicked a button and shared a defamatory update with their followers or connections.

While I can understand the argument and agree there is merit to it, as well as the challenge that retweeting and similar sharing online potentially and exponentially aggravates the initial defamation, I don’t necessarily agree that it should be actionable on this scale.

If you look to recent cases, you generally see this issue arising in the context of politicians and sports personalities whose indiscretions are published online (usually Twitter) and disseminated rapidly. Embarrassed plaintiffs and applicants approach courts, indignant, and seek to silence the debates and expressions of schadenfreude. The courts, applying the law as they understand it to this new medium, grant orders which sometimes just seem to be out of touch with new realities. What concerns me about these cases is that simply applying these legal principles to this new, unprecedented landscape can, and often does, have a chilling effect on freedom of expression.

The social Web is an unparalleled platform for expression (both desirable and undesirable). It is absolutely used for undesirable purposes that include unjustifiably harming reputations, economically harming content creators by exploiting their work without their permission and harming systems around the world. At the same time, it is a powerful platform for previously disenfranchised voices which include protestors fighting oppressive regimes and consumers speaking out against irresponsible brands.

Applying conventional defamation law to these scenarios without developing a more nuanced and robust model of what should be protected free expression could have the effect of stunting what could otherwise be a radically transformative shift in our collective culture towards a more transparent and empowered society. A quote from the 1925 US Supreme Court case of Whitney vs California seems appropriate:

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

Johannesburg High Court rules on Facebook defamation

The innocuous looking case of H v W which was handed down in the South Gauteng High Court on 30 January 2013 is anything but. Judge Willis’ 30 page judgment recognises the harm a Facebook post can do to a person’s reputation and throws the weight of the Court behind the person defamed (and who can afford the legal fees).

Update: Here are a few thoughts which are partly a summary and partly what I think is really interesting about this case. Be sure to read the post itself, though, there is a lot to unpack in this case.

Back to Wits with Aaron and Ashley-19

The innocuous looking case of H v W which was handed down in the South Gauteng High Court on 30 January 2013 is anything but. Judge Willis’ 30 page judgment recognises the harm a Facebook post can do to a person’s reputation and throws the weight of the Court behind the person defamed (and who can afford the legal fees).

What the judgment says

Background

Judge Willis’ judgment begins with some background information (the names of the parties were redacted to prevent further harm). W (the “respondent”) published an open letter to H (the “applicant”) on Facebook “for public consumption” which included the following paragraph:

I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified. Remember I see the broken hearted faces of your girls every day. Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to take responsibility for the
consequences of your own behaviour? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, do you still see a man?

Judge Willis continues and explains that –

The applicant is an insurance broker who is separated from his wife. The respondent had been a close friend of the applicant. This friendship extends back from the time before the applicant married his wife. In terms of a Deed of Trust, the applicant and his wife had jointly appointed the respondent to be the guardian of their three minor children in the event that both the applicant and his wife died or became incapacitated before their children attained their majority. The applicant had provided the respondent with guidance in starting her current business venture. The respondent had lent the applicant money to tide him over certain financial difficulties.

The applicant and his estranged wife are engaged in a divorce action. The applicant’s estranged wife is presently residing with the respondent. The applicant’s wife left him to stay with the respondent on 14 January, 2012. The applicant pays for the children’s medical aid, extra mural classes, stationery and a full time tutor to assist them. The three minor children born of the marriage between the applicant and his estranged wife are Z, born in 1997, M, born in 1999 and C, born in 2001. These minor children have been residing with the applicant for the last few months. The two minor daughters are both ‘friends’ on Facebook with the respondent. A ‘friend on Facebook’ is a ‘term of art’ to which I shall later refer. The applicant and the respondent were friends on Facebook but, consequent upon the applicant’s wife leaving him and moving into the home of the respondent, the applicant has ‘defriended’ the respondent.

The applicant complains that the posting in question publishes information which portrays him as:

(i) A father who does not provide financially for his family;

(ii) A father who would rather go out drinking than caring for his family;

(iii) A person who has a problem with drugs and alcohol.

The applicant’s attorney, in her letter dated 28 February 2012 addressed to the respondent, referred to the possibility of a claim for damages. The respondent claims that she posted the posting not to defame the applicant but in order for the applicant to reflect on his life and on the road he had chosen.

The law the Court relied on

The lawyers involved in the matter conducted what appears to be fairly substantial research on the law on defamation online and with reference to Facebook. Judge Willis relied fairly heavily on two academic articles by –

The Court quoted extensively from Roos’ article, largely as a means to understand Facebook and its mechanics. Although reliance on Roos’ article and her explanation of how Facebook works may not be integral to the judgment, it is unfortunate. Roos appears to have a fairly limited understanding of how Facebook and its privacy settings work and this gives the impression that activity on Facebook is unavoidably more public than it need be. One example of this is Roos’ explanation of Facebook’s primary privacy options:

In Facebook there are three privacy settings to choose from for information other than the user’s name, profile picture, gender and networks. Users can choose to make other information visible to “everyone”, or to “friends of friends”, or to “friends only”. It is important to recognise that a “friend” on Facebook is someone you have listed as a “contact” – such persons are not necessarily friends in real life.

Users can control their visibility to some extent by using the privacy settings to make personal information available only to friends, and of course by limiting the number of friends or contacts they add to their networks. In general, however, most users give out an extraordinary amount of information.

The last part about people sharing a lot of information is true, of course, but what Roos missed is that users can also share fairly selectively using Facebook lists which stand apart from the default “Public”, “Friends”, “Friends except acquaintances” and “Only me”. To be fair to Roos, though, her article was published in 2012 and Facebook’s privacy controls have changed since then and, in many respect, have become somewhat more secure in some respects, and have eroded protections like users’ privacy by obscurity. That said, she made a few good remarks about what I see as privacy’s contextual nature:

In the context of SNSs, one could argue that subscribing to an SNS and completing your profile information is similar to appearing in a public place. The Internet is a very public place, and Facebook clearly warns subscribers that their privacy cannot be guaranteed. However, in my opinion the privacy settings that one choose, should also be taken into account when considering whether a person has really chosen to disclose his or her information to an indeterminate number of persons. If you chose to reveal your personal information to “Friends Only” and if you limited the number of friends that you added, it could be argued in my opinion that you did NOT choose to reveal your information to an indeterminate number of persons. You have, in fact, revealed your personal information to a limited number of people. If one of your Facebook Friends then further discloses personal information that was provided by you in these circumstances, I would argue that you should have a delictual claim for infringement of privacy.

Roos made another important point to bear in mind when considering whether a person’s right to privacy has been infringed is similar to a defamation analysis (and which Judge Willis touched on in his judgment):

It should also be remembered that the wrongfulness of an infringement of privacy is negated by the presence of a ground of justification. Neethling identifies the following traditional grounds of justification as relevant to the right to privacy: necessity, private defence, consent to injury, and performance in a statutory or official capacity. Another ground of justification which is relevant to privacy is the protection of legitimate interests, including the public interest.

In the context of SNSs, consent is a particularly relevant ground of justification. Whenever the user discloses personal information on his webpage, he or she consents to the publication of that private information. However, in order to be valid the consent must meet certain criteria.

She then went on to discuss the parameters of the consent required to justify a privacy infringement. Essentially, consent must be informed although in light of the Protection of Personal Information Bill, we can adopt the Protection of Personal Information Bill’s defintion of “consent” as –

any voluntary, specific and informed expression of will in terms of which permission is given for the processing of personal information

Unfortunately Roos’ understanding of Facebook’s privacy controls and how it works, generally, is limited as expressed by her article and Judge Willis has accepted her explanation as a complete and accurate exposition of privacy on Facebook. This will likely, and unfortunately, colour future Court judgments regarding Facebook privacy issues. One inaccurate statement is Judge Willis’ understanding that –

Accordingly, although one can control one’s own Facebook profile but there is no method, within the Facebook system itself, by which one can control what other people place on their profiles about
oneself and who can look at that.

This is not really correct. Users have the ability to exercise a fair amount of control over whether other users can post their personal information and tag them (Roos seems to have largely misconstrued how tags can be restricted and controlled by the person being tagged).

After exploring Twitter briefly, Judge Willis turned to established case law in South Africa including authority for the proposition Roos expressed that a privacy infringement can be justified in a similar way that defamation can be justified and a more recent Supreme Court of Appeal judgment in the 2004 Mthembi-Mahanyele v Mail & Guardian case which, according to Judge Willis –

affirmed the principle that the test for determining whether the words in respect of which there is a
complaint have a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned

The Court, in the Mthembi-Mahanyele case set out the test for defamation as follows (and cited a 1993 case in the then-Appellate Division of Argus Printing and Publishing Co Ltd v Esselen’s Estate) –

The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words . . . to convey a meaning defamatory of the plaintiff. . . . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’

Referencing one of the justifications for (or defences to) defamation, namely that the defamatory material be true and to the public benefit or in the public interest, Judge Willis drew an important distinction that is worth bearing in mind –

A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The courts do not pander to prurience.

The Court moved on to explore another justification, fair comment. In order to qualify as “fair comment” –

the comment “must be based on facts expressly stated or clearly indicated and admitted or proved to be true”

The person relying on this justification must prove that the comment is, indeed, fair comment and “malice or improper motive” will defeat this justification or defence, regardless of its demonstrably factual nature. In this particular case, the Court found that W acted maliciously and she was unable to prevail with this defence.

The Court’s finding

Flowing from the Court’s finding that W’s Facebook post was defamatory and unlawful, Judge Willis considered a procedural issue. H instituted proceedings on motion, which means that H used an expedited approach relative to the more conventional trial action and sought a court order requiring W to remove the post and stop posting about H (the very simplied and incomplete version). Normally an applicant instituting motion proceedings would be asked to explain to he Court whether there is “an absence of similar protection by any other ordinary remedy”. W’s legal team pointed out (as respondents frequently do) that H could have sued her for damages (monetary losses) through a trial action.

Judge Willis considered this argument and took a pretty important step in developing the common law that governs these sorts of proceedings. He said the following:

It is in respect of the remedy where infringements of privacy take place in the social media that the common law needs to develop. The social media form a subset of the electronic media but are not coextensive with it: the social media are all part of the electronic media but not all the electronic media are social media. The electronic media were, almost certainly, beyond the imagination of the court when Setlogelo v Setlogelo was decided in 1914. Not only can items be posted and travel on the electronic media at a click on a computer in a moment, in an instant, at the twinkling of an eye, but also they can, with similar facility, be removed therefrom. This can also be done at minimal cost. The situation is qualitatively different from the scenario where newspapers have been or are about printed in hardcopy and distributed. The law has to take into account changing realities not only technologically but also socially or else it will lose credibility in the eyes of the people. Without credibility, law loses legitimacy. If law loses legitimacy, it loses acceptance. If it loses acceptance, it loses obedience. It is imperative that the courts respond appropriately to changing times, acting cautiously and with wisdom.

He went on to explain that –

[t]he historical reluctance of the courts to interdict publication in the media has its roots only in the issues relating to technology and economics that arise from ‘stopping the press’ but also a concern about the social consequences of stopping the free flow of news and information. This concern about the ‘chilling effect’ of court orders on freedom of expression has been manifested in the case of National Media Limited v Bogoshi recently decided in the SCA.

This is an interesting perspective. Just as social media accelerates the rate at which people can share (and remove) their thoughts, it also addresses the courts’ concerns about ordering that defamatory materials be removed from these social services because the costs involved are minimal. Ironically, though, litigation remains a pretty costly exercise so this must also factor into litigants’ cost analysis. For the courts, though, it would seem that the social Web removes an obstacle to judicial activism when it comes to defamation. Of course it isn’t just about the economics involved, courts will continue to assess the relative value of one party’s right to freedom of expression when weighed against the other other’s right to dignity, for example. As Judge Willis points out –

resolving the tensions between every human being’s constitutionally enshrined rights both to freedom of expression and to dignitas is all about balance. In the case of Le Roux v Dey Freedom of Expression Institute and Another as amici curiae) the Constitutional Court emphasized the need to take into account the context in which a publication occurs.

W’s advocate attempted to argue that H could take the matter up with Facebook itself as a violation of its terms and conditions but Judge Willis wasn’t convinced. He didn’t feel there was anything before him to “assure me that Facebook would comply with such a request”. He further noted James Grimmelmann’s argument that “it is better for the courts to focus on users rather than Facebook itself if intrusions on privacy are effectively to be curbed”. Essentially, “if one wants to stop wrongdoing, it is best to act against the wrongdoers themselves”.

Media reports about this case referenced the orders H sought against W which included a prohibition on W “posting any information pertaining to the applicant on Facebook or any other social media”. Judge Willis refused to grant this order as he said he has “no way of knowing for certain that there will be no cicumstances in the future that may justify publication about the applicant”. I think he made the correct decision there and this means that these complaints will have to be dealt with on a case by case basis with careful consideration of each case’s merits.

The Court also refused to grant orders placing W under arrest if she fails to comply with the order and that the Sheriff of the court be ordered to remove the offending post. Instead W was ordered to remove the posts and pay H’s costs. As a practical matter, Judge Willis made the following point:

Those who make postings about others on the social media would be well advised to remove such postings immediately upon the request of an offended party. It will seldom be worth contesting one’s obligation to do so. After all, the social media is about building friendships around the world, rather than offending fellow human beings. Affirming bonds of affinity is what being ‘social’ is all about.

A few more interesting points

Judge Willis went on to deal with public figures and the prospect of having to deal with a flurry of relatively minor complaints after this judgment.

With respect to public figures, he pointed out that while they enjoy a right to privacy, “[t]here is legitimate public interest in the affairs of public figures” and this means that they may not enjoy the same degree of protection as citizens not in the public spotlight when it comes to defamation online. As Judge Willis put it –

Trenchant commentaries on the performances of politicians as politicians, entertainers as entertainers, musicians as musicians, artists as artists, writers as writers, poets as poets, sports stars as sports stars will generally pass legal muster, even if posted in the social media. When it comes to freedom of expression in South Africa, there are oceans in which to swim and upon which to sail as freely as the wind blows.

When it comes to the prospect of being inundated by defamation claims (my words), the Court referenced the National Media Limited v Jooste case and Judge of Appeal Harms’ comments that –

the question of whether private facts are worthy of protection is determined by reference to ‘ordinary or reasonable sensibilities and not to hypersensitivities’.

Similarly, Grimmelmann has referenced the legal maxim de minimis non curat lex which Judge Willis translated as “the law is not concerned with trivia”. Ultimately, the cost of litigating, even when it comes to motion court proceedings of this nature, will stem the flow of applications to court. Litigation remains a costly exercise and this cost may not always be warranted, regardless of how hurtful the comments may be. This is especially so in the context of motion court proceedings where courts tend not to grant damages as relief because of how these motion court proceedings work.

Lastly, the judgment didn’t deal with another complication: the infamous Streisand Effect. This phenomenon kicks in regardless of your entitlement to protect legitimate rights. It has the ability to effectively negate the practical value of a court order such as the one Judge Willis granted and should always be carefully considered and weighed up against the risks in any matter. There are going to be cases where it is better to walk away and focus on damage control and other cases where it is worth risking the phenomenon and going to court. A critical factor will be whether the legal advice you take is adequately informed about not only the law but the social Web dynamics to form a better risk assessment before you pull the trigger.

This case is an important one. It advances the law dealing with social Web issues and, if it is upheld or applied by other (and higher) courts, it will change the tone for how courts will deal with issues like online defamation and privacy.

Pitfalls of demanding employees’ social network access credentials

I receive questions now and then about the legalities of employers demanding access to prospective employees’ access credentials for their social networks. I haven’t had a chance to prepare a post on this (I believe there are two big pitfalls for employers and this practice is most likely unlawful) so I recorded a few thoughts instead.

Employers engaging in this practice are exposing themselves to substantial liability and claims of rights infringements. It’s just a bad idea and should be actively discouraged.

Upcoming Event: Social Media Policy Workshop at the ITWeb Social Media Summit

I’m speaking and presenting a workshop on social media policies and related topics in the workplace at the ITWeb Social Media Summit in mid-August at The Forum in Bryanston, Johannesburg. ITWeb has invited people to book a seat at the workshop. There are some details about the workshop on the workshop’s page which you can take a look at. Here is an idea of what I’ll cover:

This practical workshop offers a general introduction to social media in the workplace, and will focus on how to develop and implement a social media policy.

This interactive session will guide delegates through the ‘dos and don’ts’ of establishing a social media policy. Paul will help delegates to understand the opportunities social media channels open up, but will also alert them to the potential risks. A well-thought out and implemented social media policy will function as a set of guidelines to help business to mitigate that risk.

I’ll also present on the 14th on a related topic but the workshop will be far more practical and in depth. The workshop seats are probably going to be pretty limited to book a spot early if you want to attend. If you have any specific and related topics you’d like me to explore, I’m happy to do that if we have time. Let me know in the comments below or get in touch with me and let me know?

I’m looking forward to this event and I hope to see you there!