A video went viral of a naked man casually chatting on his phone. A woman’s outstretched foot is visible, her toenails painted hot pink. The man is facing a television screen and has his back to the woman. When he turns around, he can be seen holding his manhood. The man was none other than beloved pastor and motivational speaker Sthembiso Zondo, who gave weekly sermons on Ukhozi FM’s Vuka-Mzansi morning motivational show.
The tabloids picked up on the story within 24 hours of the video surfacing on the internet, and it emerged that the lady with the pink pedicure secretly recorded the pastor and allegedly blackmailed him for R100 000 not to release the video. He didn’t pay her, so she posted it. In an instant, Pastor Zondo became one of an increasing number of revenge porn victims whose sexually explicit videos or photos are shared online without their consent.
The footage is often uploaded by exes bent on shaming or embarrassing their former partners. After the video, Ukhozi FM suspended Zondo until further notice, and although he suffered a great deal of public judgment and humiliation, he could not do much about it.
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Attorney Alicia Koch, who consults for Web Tech Law, Hooker Attorneys and Bregman Attorneys, says that when it comes to social media, it’s important to realise that our rights are legally limited and that what we post has consequences.
“Revenge porn would fall under the categories of defamation and invasion of privacyou can take legal action against both the publisher of the revenge porn and the perpetrator on the grounds of defamation, infringement of personality rights, and unlawful invasion of privacy,” she explains.
- To remove any photo or video uploaded by someone else that you consider defaming or undesirable (provided you have asked the person who defamed you to take it down and they will not co-operate), follow the following steps: Google your name. Be sure to include web, images, news and videos in your search parameters.
- Should you find your name on a porn site connected to unauthorised pictures or videos, visit the Google removal tool website google.com/webmasters/tools/ removals. Enter the URL of the content page you wish to have taken down and follow the instructions.
- You might need to contact the webmaster of the site. Their email address should be displayed on the site. Ask the site to take the page down or erase your name.
- Provided they agree to take down the content, visit the Google removal tool site and ask for any traces/records of your affiliation with the porn site to be removed.
Koch admits, however, that the very idea of privacy on social media is tricky.
“Sharing on Facebook, blogs and Twitter certainly blurs the line between the private and the public,” she adds.
There have been other cases involving high-profile people, including popular DJ Black Coffee. The DJ found himself a victim after a woman who claimed to be his mistress went to the tabloids and showed them a picture of herself with him in the background.
She then provided the newspapers with racy Twitter direct messages between the two of them. One tabloid published the messages. As the story unfolded another woman entered the fray, allegedly blackmailing the DJ and threatening to release a different sex tape if he didn’t pay her R100 000.
DJ Fresh was also burned when a woman he was chatting to on WhatsApp took a screen grab and posted the conversation on social media. And who can forget singer Mshoza’s toe-sucking saga, after a picture of her sucking on her lover’s toes in the bath ended up in Sunday Sun and Drum magazine?
While these cases may arouse curiosity in many, the reality is that in the age of social media, all of us are at risk from suffering the same fate as Pastor Zondo or Black Coffee.
Social media law experts Emma Sadlier and Tamsyn de Beer co-wrote a book titled Don’t Film Yourself Having Sex, in which they advise that even though we love our partners when we’re still with them, we should exercise caution about what we do in the haze of romance.
An excerpt reads:
A woman in the United Kingdom found herself in a similar predicament with her vengeful ex. She told reporter Emily Cunningham of The Guardian:
Locally, there are legal repercussions for this type of invasion, and the sooner we realise we can’t just post things online all willy-nilly, the better.
In a 2013 case, the North Gauteng High Court found a husband and his new wife guilty of defaming his ex-wife on Facebook, and ordered them to pay her R40 000 in damages. Section 8 of South Africa’s Bill of Rights states that everyone has the right to privacy, which includes the right not to have: their person or home searched; their property searched; their possessions seized; or the privacy of their communications infringed upon. If any of these are violated in any way, your human rights have been compromised.
Founder of Carter Law Firm, Ruth Carter, expresses this sentiment in a piece she wrote, titled When can someone post photos of you online?
“There may be activities where there are no specified rules about photographs, but where the nature of the event or activity gives you an expectation of privacy. For example, if you and your partner make a sex tape or take intimate pictures of each other, there’s an inherent expectation that no one besides you two would see them. If you break up, your partner can’t post the pictures online and protect themselves by saying that you never agreed to keep them private,” she explains.
The right to privacy, dignity and freedom of expression are the three legal issues that come into play whenever we publish things on social media.
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Koch says: “Cases of unauthorised endorsement or unauthorised publication of a name or picture of someone else come to the fore on occasion, but they are not always understood by the simple man on the street, and no one really understands what issues are involved — defamation, passing off, brand devaluation, the list goes on. However, the Constitution recognises the right to dignity, and South African courts have recognised that people have personality rights.”
A case involving businesswoman and former Miss South Africa Basetsana Kumalo is an apt example.
Koch says: “She successfully sued Cycle Lab for using a photo of her in an advertisement. The situation was an opportunistic one: when visiting the cycling shop, she tried on some cycling helmets and the shop owner, recognising her as a national celebrity, instructed his shop steward to take a photograph of her in a cycling helmet. The owner of the shop then used the picture in an advertising campaign in 1time airlines’ online magazine, but the advertisement did not include Kumalo’s name
“When the advertisement was brought to Kumalo’s attention, she immediately objected, stating that she did not give her permission for the picture to be taken or for it to be used in any advertisement. She claimed she had been abused and her privacy invaded, but the owner of the shop claimed that she had not objected to the taking of the picture in the first place. The court held that Kumalo’s right to identity had been violated because the advertisement had created a wrongful impression of endorsement.”
Cases like this bring hope that winds of change are blowing through our legal system. The Film and Publications Board has also gazetted a draft policy that could help regulate online posts, videos, pictures and other content. Under the policy, producers of content would have to apply for classification before their content is made available online.
We should all follow two rules of thumb on social networks. Firstly, if you don’t want naked pictures of yourself out there, don’t take them. And secondly, don’t post anything on social media that you wouldn’t want to see on the front page of a newspaper.
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