“The scariest thing about digital abuse is how a victim can never know how far it went, how many people it reached, and how much those who saw it bought it.” (Psychology Today)

Our laws are always protective of our rights to privacy and dignity, and a recent High Court decision confirms that defamation can be a very costly business for perpetrators.

In serious cases such as those involving “revenge porn” (a term commonly used to describe “the publication of non-consensual intimate images, recordings or depictions”) offenders face criminal prosecution as well as substantial damages claims. As evidenced by a recent High Court default judgment ordering a husband and wife to pay their victim R3.55m in damages. This after they used a fake Facebook profile and other channels to disseminate explicit images and videos of her. 

The married man, his wife, and their victim

The victim (a highly qualified professional woman) was misled by a married man into thinking that he was single. A romantic relationship developed and deepened to the stage where he proposed marriage, and she accepted. We can only imagine her horror when, six months down the line, the man’s wife appeared out of the ether with the shocking disclosure that he was already married – with one child at home and another on the way. 

The victim immediately broke off the relationship, which is when her ordeal began. The husband and wife took turns to attack her, initially with reference to what the husband called “porno videos” – explicit and intimate images and videos which he had recorded without her knowledge or consent. 

The details make for grim reading, but they are important in understanding the Court’s award of substantial damages:

• Firstly, the husband refused to stop seeing his victim. He visited her workplace, ignored her attorney’s letter demanding he stop communicating with her, and threatened to send the videos to her attorney, family and friends. 
• He then created a fake Facebook profile in her name, sent her a video clip to show what he had on her, then invited her friends, family, and professional colleagues to join this fake profile. He went on to publish the videos, threatening to send them to “everyone” if she did not sleep with him. They were unfortunately seen by her friends, family, and strangers before she could get the page taken down. 
• The second perpetrator, the man’s wife, appears to have joined in at this stage, with comments on the victim’s fake Facebook profile “calculated to defame her and depict her as a dishonest, immoral, promiscuous and adulterous person who is a disgrace to her family and profession.” The wife then took her attack directly to the victim’s workplace, barging in to her offices and making highly defamatory, embarrassing, and humiliating communications to her colleagues. An email to the victim’s bosses stated that she was a homewrecker and “was not an asset to the company if she slept with married men.”
• Embarrassed, humiliated and unable to continue working, the victim was so emotionally distressed that she considered suicide. Stress-related medical problems, fear of going out or of forming personal relationships, and fears for her own and her family’s safety led to severe emotional trauma. She remains on medication for PTSD (post-traumatic stress disorder) and is also under long term treatment by a psychologist. 

The Court had no hesitation in awarding her both the damages she claimed in full – a precedent-setting R3.55m – and legal costs against the perpetrators on the punitive attorney and client scale.

But that’s not all – criminal liability could loom

The victim in this case had obtained a protection order against her tormentors. A breach of this could expose them to sentences of 5 years’ imprisonment if she decided to pursue the matter. 

The husband and wife could also face serious criminal charges under the Films and Publications Amendment Act, with penalties of up to a R300,000 fine and 4 years’ imprisonment “for knowingly distributing private sexual photographs and films in any medium, including the Internet and social media, without the prior consent of the individual”. Moreover, the Cybercrimes Act criminalises “the disclosure of data messages of intimate images where the intimate image violates or offends the sexual integrity or dignity of the person or amounts to sexual exploitation”. That Act provides for fines and up to 3 years’ imprisonment for offenders. 

None of this does anything to change the victim’s suffering – but knowing that the law is on her side might provide her some solace as she inches towards recovery. 

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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