Legal View

Cyber bully Act becomes law

There are technical and practical concerns around implementing a new law that - for the first time - clamps down on cyber bullies, notes a lawyer.
There are technical and practical concerns around implementing a new law that - for the first time - clamps down on cyber bullies, notes a lawyer.

A long-awaited law that, for the first time, seeks to clamp down on the scourge of cyber bullying, came into effect on Saturday, and makes provision for those who fail to comply with court orders to spend five years behind bars.

While a step forward in protecting people, especially youngsters, from being harassed across the Internet or via cellphones, there are practical difficulties that will have to be overcome, such as linking an IP address to the bully.

In terms of the Protection from Harassment Act, someone who has been bullied can ask the courts for an interim protection order, which will be granted as long as the court is satisfied the respondent has harassed, or is harassing, the applicant and that harm has or may be caused.

The interim order can be granted without the respondent's knowledge, as forewarning may undermine the point of the protection order, and children under 18 can approach the courts without their parents' knowledge.

In order to track down offenders who bully behind the cyber wall, the Act stipulates that electronic service providers can be forced to hand over the name, surname, identity number and address of the person to whom the IP address, e-mail or cellphone number belongs.

The order will be made final if the respondent fails to appear in court, or the court finds, on balance, that the respondent was or is harassing the applicant.

As soon as the order is made final, the applicant will also receive a warrant of arrest that can be handed to the police if the bully fails to abide with the order. Any person who contravenes the order can be jailed for as long as five years.

In addition, if electronic communications service providers, or their staff, fail to hand over information, they can be fined R10 000, while staff can be jailed for six months.

Cellphones most prevalent

According to an August 2012 report ? undertaken by the University of SA, which spoke to more than 3 000 students between the ages of 12 and 24, in grades eight to 12, in Gauteng schools ? 34.4% had been bullied in the past two years.

The research, which looked at emotional, physical and online bullying, found 27.7% of the bullied children were harassed by an unknown adult, and 60.4% were bullied by a young person. Some 16.9% of bullying was through the Internet, with the bulk being classified as name calling (48%) rumours and gossip (49%), and upsetting messages (53.6%).

Legalities

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By far most of the cyber bullying was conducted via cellphones, which accounted for a far larger percentage of sexual remarks, threatening statements, false statements, name calling and upsetting messages than either home or school PCs.

Of those surveyed, 40.3% were against reporting bullying, with some verbatim responses including: "I'm scared to tell my mother because she always yells at me" and "They told me they will beat me up if I report them".

Freedom from harassment

Mthunzi Mhaga, justice spokesperson, says the law is the first of its kind and the first time that a law against cyber bullies has been implemented. He adds there will be education campaigns to teach people to keep records of electronic communications, which can be handed to the courts as evidence.

A Department of Justice statement on the law coming into effect, issued on Freedom Day, says: "South Africans will no longer have to endure the pain and suffering of being harassed."

The "long-awaited" law was adopted by Parliament towards the end of 2011, and gives effect to the South African Law Reform Commission's recommendations to "protect a person from behaviour which may not constitute a crime but which may impact negatively on various rights of an individual," says the department.

"Crucially, the Act seeks to afford protection to some of the most vulnerable in society who may be victims of harassment," says the department. It protects the poor, who cannot afford expensive legal remedies, children who are subject to bullying in schools, individuals who are being harassed by cyber stalkers, and those who are subjected to sexual harassment.

Practical concerns

However, Internet Service Providers' Association regulatory advisor, Dominic Cull, says there are technical and practical issues around implementing the new law. He questions how it will be possible to garner sufficient information to know which Internet service provider (ISP) to approach.

In addition, there is the question of what happens if someone is being harassed on Facebook, which is outside SA's jurisdiction, says Cull. "There is no way a SA court can force Facebook to release details."

Yet, the law is a step forward if its helps protect against cyber bullies, says Cull. He notes there will be a need for training staff at magistrate courts and police stations in its application and practicalities. "It's going to take a little while to settle down."

Cull says the new law extends the current protection against abuse beyond the Domestic Violence Act, and is broader in scope because it refers to harassment and not just violence. He adds that it places an obligation on ISPs and mobile operators to aid law enforcement.

If the bully's details are not known, the court can require ISPs and cellphone companies to provide contact details, says Cull. It is part of a continuing trend for ISPs to get involved in general law enforcement, he adds.

Cull expects the Maintenance Act to be amended shortly in a similar fashion, which will see the courts being able to track down defaulting parents via e-mail, for example.

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