Cyberbullying and the law

Abstract 

The 4^th industrial revolution has brought about enormous changes in the digital space. The development of new accessible technologies and the expansion of the Internet have  revolutionised communication across the world.¹ The majority of people turn to rely too much  on online tools, and this has exposed them to many risks such as cyberbullying. This legal  articles analyses cyberbullying, in the digital space and how the law regulates such. It outlines  and informs online users of their rights in a social media context. It discusses protections that  the law offers against cyberbullying and provides recommendations on how the law in South  Africa can be upgraded to strengthen protection. It is recommended that appropriate  mechanisms should be put in place to ensure the safety and security of online users and address  the devastating impact of cyber-bullying.

Cyberbullying and the law in South Africa

This legal article discusses cyberbullying and the law and regarding cyberbullying in South  Africa. This is an important issue considering the fact that the digital space is slowly growing  with changes in communication being affected, computers have taken over our lives. The law  needs to take a steady change to be able to address the changes that occur as a result of the 4^th industrial revolution. Historically, bullying consisted of youth violence that affected children  and teenagers within the school environment. However, technology has developed to facilitate  online aggression and has been termed “cyberbullying”. Since the Internet was introduced, the  traditional definition of bullying has undergone certain changes: electronic communications  introduced cyberbullying, which is not defined by the face-to-face interaction associated with  traditional bullying. In South Africa there is no specific legislation that deals with  cyberbullying.

Cyber-bullying involves the use of digital technology or technological devices such as the  Internet, mobile phones or online games by a person or group of persons (including  adolescents) to threaten, harass or humiliate another person.² Cyberbullying is different from  the traditional way of bullying which is characterised by physical intimidation and the use of  power over a weaker party.³ Cyber-bullying is differentiated from other types of bullying  because of its online content, its anonymity and its ability to involve or reach more people and  its ability to invade the privacy of one’s home. Cyberbullying is problematic mostly in  adolescents, as they have access to high internet speed and phones without parental  surveillance. Although cyberbullying is most common in teenagers, it also occurs between the  youth on social media platforms. The main objective of cyberbullying is to harass, embarrass  and to victimise other people.⁴ Cyber bullying make take different forms as such writing nasty  comments on social networking sites and defamatory comments online.

In the past, there was no regulation of the digital space, but the rise of the internet has now  created a need for legislation to be formed to address and to control of contents published and  distributed through the Internet. To address the digital space, the South African government has indeed formulated certain acts which regulates the digital space and offers protection to  personal information from being published.

Constitutional Provisions

Before we turn to the discussion of legislation that has been enacted by the government to  protect people including children from cyberbullying, we turn to the discussion of the  Constitution. In South Africa, the constitution is supreme and there is no law that should go  against it.⁵It also sets out rights in the Bill of rights.⁶ Cyber-bullying fringes certain human  rights. Cyber-bullies have the ability to invade the privacy and sanctuary of one’s home by  electronic media thereby violating one’s right to communication, access to information, and  one’s right to privacy. Thus, the act of cyber-bullying has the potential to infringe various  human rights such as the right to freedom of expression, right to dignity, right to bodily and  psychological integrity and right to privacy. Section 28 of the constitution protects children  from any sort of abuse this includes and is not limited to bullying. The section stresses out that  the best interest of a child is of paramount importance.⁷ The right to privacy is enshrined in  section 14 of the constitution and provides everyone with the right not to have privacy  infringed.⁸ The right to human dignity plays an important role in protecting ones dignity, this  is enshrined in section 10 of the constitution. The Section 16 of the Constitution provides that  everyone has the right to freedom of expression this also includes the right to receive and impart  information, freedom and artistic. This right does not extend to incitement of violence, so this  implies that the right of the cyber-bully to exercise his artistic creativity on the internet and social networking site will have to be weighed against the victim’s rights to privacy and  dignity.⁹It is submitted that a person’s dignity is also impaired when one is subjected to  treatment which constitutes degrading or humiliating conduct such as the posting of abusive  texts, messages or images on social networking sites.

The effects of cyberbullying are far worse than traditional bullying. This is because extensive  information can be quickly uploaded and spread widely through the Internet for others to see,  thus making the effects of cyberbullying greater.¹⁰ The victims suffer from depression and  psychological traumas. It negatively impacts the psychological integrity of the victims. As much as cyberbullying violates the above-mentioned constitutional rights, it must be noted that  the freedom m of expression of the bully is therefore infringed. This turns out to be the gap that  needs to be given more attention and needs to be addressed. There needs to be balance struck  between the rights of the victims and those of the cyberbully. To this end, legislation should be  enacted to adequately protect the rights of online users and to promote tolerance and respect  for diverse opinions in a fair manner.¹¹

Legal Framework 

South Africa has signed and the United Nations Convention on the rights of a child and  therefore has to take into account its provisions. It therefore has an obligation to formulate laws  that reflect the provisions of the convention. This convention offers a protection of the rights  of children as well as include psychological bullying by adults and other children and to include  acts committed via digital media and the Internet.¹²

In South Africa there is no legislation that specifically speaks to cyberbullying or that has been  enacted specifically to provide for Cyberbullying. Although this is the case, the statutes that  are in force already cater for cyberbullying in certain instances. The Protection from  Harassment Act 17 of 2011 came into effect on the 27th of April 2013. The definition of  harassment in the Act is sufficient to include cyber-bullying. To illustrate this, the Act refers to  the use of ‘electronic communications’ and the sending of messages by ‘electronic mail’ in the  definition of harassment. The enactment of this legislation is a step in the right direction  because it provides an important option for vulnerable persons such as victims of cyberbullying  to have something to rely on in the case of harassment by electronic means.¹³ The Electronic  Communications and Transactions Act 25 of 2002 (‘ECT’) was introduced to address the  facilitation and regulation of electronic communications and to prevent abuse of information  systems.¹⁴ The focus of the ECT is said to protect “data” or data messages. Chapter 13 of ECT  deals with the concept of cybercrimes. Although ECT does not specifically make provisions  for cyberbullying, we are aware that cyberbullying involves the potential abuse of electronic  communications or information systems to degrade, humiliate or bully another person.¹⁵ Similarly, a person may ‘hack’ into a person’s computer to intimidate, harass or threaten him or her. Therefore, this helps to draw a link between the act of cyber-bullying and cybercrime and  finally come to the conclusion that cyberbullying may fall under the scope of cybercrime, and  it can therefore be addressed by Chapter 13 of the ECTA.¹⁶ In the case of herman botha v bool  smuts a cyclist found dead animals caged on Mr Botha’s farm and took pictures and sent them  to Mr smuts, who then circulated the photos of the chickens on Mr Botha’s farm on social  media and condemned the trapping. Mr Botha sued on the basis of his privacy being infringe.  The high court dismissed the claim, the constitutional court ruled that the right of privacy was  not violated regarding his farm business and activities, and freedom of expression prevailed.¹⁷

Since cyberbullying is more common in adolescents in schools, the government and schools  has taken measures to implement code of conducts in schools so as to regulate cyberbullying  in schools.

Challenges

One of the biggest challenges with cyberbullying is the lack of proper legislation to address it.  The government needs to formulate and implement proper legislation that specifically  addresses cyberbullying. A legal definition needs to be adopted to enable authorities to deal  with this correctly. Attempts to curb this concerning issue may not be successful before proper  implementation is done.¹⁸ 

Recommendations and Conclusions 

The rise of the internet has opened a flood gate of crimes that can be created over the internet.  This article showed that despite the existence of legislation that specifically addresses  cyberbullying, there are certain sections of existing law that applies to cyberbullying and  continues to protect the rights of the victims. The article also outlined constitutional rights that  are applicable to the victims. It further discussed the legal framework that is applicable to the  concept of cyberbullying.The article outlined challenges faced and recommends that the  government adopts practices from other countries who better deal with this issue and have  proper law that addresses the concept. It is recommended that South Africa should look at other  practices from other countries who best regulate cyberbullying and have better ways to curb it.

South Africa could learn from countries such as the United States of America and United  kingdom who have better implemented that their legal systems. 

The United State of America being an example of a country that South Africa could learn from.  The country has implemented legislation that deals with issues such as cyberbullying, this  includes the National Information Infrastructure Protection Act of 1996, The Electronic  Communications Privacy Act of 1986 (hereinafter the ECPA), The Children’s Internet  Protection Act (‘CIPA’), they are all aimed at online stalking, cyberbullying and all online  crimes.¹⁹ More strict measures need to be taken into place in order to effectively curb  cyberbullying such as the implementation of legislation that specifically deals with the problem  from all corners. In conclusion South Africa is still in need of properly implemented laws that  deal with the concept of cyberbullying.

BIBLIOGRAPHY

Journal Articles

1. F. Cassim, ‘Formulating Adequate Legislation to Address Cyber-Bullying: Has the Law Kept Pace with Advancing Technology’ (2013) 26 S Afr J Crim Just 1
2. Sershiv Reddy, “Providing a legal definition for Cyberbullying in South Africa” [2023] OBITER 758.

Case law

1. Herman Botha v Bool Smuts and Another [2024] ZACC 40

Legislation  

1. Electronic Communications and Transactions Act 25.
2. Harassment Act 17 of 2011.
3. Constitution of the Republic of South Africa, 1996.

Conventions  

1. United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3

¹ F. Cassim, ‘Formulating Adequate Legislation to Address Cyber-Bullying: Has the Law Kept Pace with  Advancing Technology’ (2013) 26 S Afr J Crim Just 1

² F. Cassim, ‘Formulating Adequate Legislation to Address Cyber-Bullying: Has the Law Kept Pace with  Advancing Technology’ (2013) 26 S Afr J Crim Just 1

³ F Cassim (n 2) 5.

⁴ F Cassim (n 2) 4.

⁵ Constitution of the Republic of South Africa, 1996.

⁶ Constitution of the Republic of South Africa, 1996, Ch 2.

⁷ Constitution of the Republic of South Africa,1996, s1.

⁸ Constitution of the Republic of South Africa,1996 s 14.

⁹ See n 2.

¹⁰Sershiv Reddy, “Providing a legal definition for Cyberbullying in South Africa” [2023] OBITER 758.

¹¹ See n 2.

¹² United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2  September 1990) 1577 UNTS 3.

¹³ Harassment Act 17 of 2011, s 3.

¹⁴ Electronic Communications and Transactions Act 25.

¹⁵ Electronic Communications and Transactions Act, Ch 13.

¹⁶ See n 13.

¹⁷ Herman Botha v Bool Smuts and Another [2024] ZACC 40

¹⁸ Sershiv Reddy, “Providing a legal definition for Cyberbullying in South Africa” [2023] OBITER 758.