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Meta, the parent company of WhatsApp, Facebook and Instagram, has agreed to comply with a South African court order requiring the disclosure of user data related to the circulation of explicit content involving schoolchildren. This development follows a high-profile legal case initiated by social media law expert Emma Sadleir, who took action against Meta. Here is more background to the story on Netwerk24.
Emma talks to Naomi Meyer regarding her background and the recent court order. She shares some advice with LitNet’s readers, as well.
Emma, most of our readers will know your name from recent happenings in the news. Please tell us about your background and who you are. What sparked your interest in digital law?
I started a company called The Digital Law Company 12 years ago. Before that, I worked at the Webber Wentzel, in the media law department. Our clients were journalists. A lot of what we did was teach our clients about the kinds of legal issues they had to look out for when publishing articles.
I then went to London and did a master’s degree in information technology, media and communications law. I went to the London School of Economics, and got a scholarship from the Oppenheimer Memorial Trust. My studies were also partially funded by Webber Wentzel. I realised that there was a massive shift occurring from mainstream and traditional media to social media.
I was young enough to understand what was taking place and to grasp the space, and I also had a year in London where I could get totally on top of a new field. I got back and started to get enquiries from kids who had got themselves into trouble on social media; I also got enquiries from schools, and I realised that there was a real need for legal advice in this field. I took myself out of the role of a practising lawyer, and I started my own company as a legal consultant.
The Digital Law Company provides education, assistance, advice and support to victims. We do corporate stuff as well: defamation, advice on how not to get fired, reputation issues. But our passion stems from teaching kids that prevention is better than cure – teaching kids about reputation, how to be safe online – providing advice. Their parents are sometimes ignorant; part of the ignorance is generational. The kids grow up on platforms the parents themselves were never exposed to.
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Their parents are sometimes ignorant; part of the ignorance is generational. The kids grow up on platforms the parents themselves were never exposed to.
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I read here that Meta, the parent company of WhatsApp, Facebook and Instagram, has agreed to comply with a South African court order requiring the disclosure of user data related to the circulation of explicit content involving schoolchildren. You have discovered 30 Instagram accounts and at least six WhatsApp channels distributing illicit content and information about South African schoolchildren. You have been involved in this case for many years. What happens next?
You refer to 30 Instagram accounts and six WhatsApp channels. It was actually 58 Instagram accounts and 12 WhatsApp channels by the time we went to court.
Meta did meet their court order deadline. I received the identifying information at 11:51 on Monday, and it’s with the forensic guys at the moment to trace who is behind it. They gave us IP addresses, email addresses, phone numbers and in some instances, device information.
You also educate learners at schools. Please could you give our readers the most important bit of advice regarding the digital environment and the law you can possibly share?
What we teach – from primary school to captains of industry – is what we call the billboard test. If you wouldn’t be prepared to see whatever you have made available to exist in digital format on a huge billboard next to your name, your face and the school you go to – even if you are sending a private message or a disappearing message or a message from an anonymous account – if you wouldn’t put it on a billboard, you should not let it exist in digital format. Digital content is vulnerable content; it is dangerous content, it can be recorded, it can be shared.
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[I]f you wouldn’t put it on a billboard, you should not let it exist in digital format. Digital content is vulnerable content; it is dangerous content, it can be recorded, it can be shared.
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The worst part is the victim blaming that goes on – it is outrageous. People often say that kids should never have taken the pictures in the first place. What the law says is that if you are under the age of 18 and you take private sexual photos of yourself, that is creation of child pornography. I believe that to be wrong. I believe that consensual sexting between teenagers who are old enough to consent to sexual acts should be allowed, because we face this exact same problem when we go to the police. When we tell them there has been a leak (non-consensual distribution of private sexual content), people would often respond by asking why you took the photos in the first place. It’s the same kind of argument as, if you wear a short skirt, you deserve to be raped.
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The worst part is the victim blaming that goes on – it is outrageous. People often say that kids should never have taken the pictures in the first place. What the law says is that if you are under the age of 18 and you take private sexual photos of yourself, that is creation of child pornography.
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I get very upset by that. It is a problem: yes, the victim is creating child pornography, but the real problem is that the person they send the content to, who in most instances is a person they trust or are attracted to or are in a relationship with, then starts circulating the pictures in a revenge porn kind of way. What has emerged more and more is that these kids are being coerced into sending content, and when they send one, there is often blackmail to send more. ("If you really do like me, you’ll send this ...") There is a lot of coercion!
We now have two laws dealing with this. One, under the Cyber Crimes Act 19 of 2020: non-consensual distribution of intimate images is a criminal offence. And two, under the Films and Publications Amendment Act 11 of 2019: if you share private sexual images or videos from someone without their prior consent, it is a R300 000 fine and four years in prison. This is if it is done by an adult; if it is done by a child, there would be additional charges of child pornography. It would also constitute crimen injuria. Which is a serious offence.
While writing the list of online issues, I thought the same thought as when I first read about your involvement with the Meta case. There are many areas of the law involved/overlapping. I think of criminal law, children's rights, the law of delict and intellectual property law, to name but a few. Often, in this country, one can feel as if the law is toothless – without power and not enforceable. Do you think that if one identifies the most prominent area of the law to focus on, one will be able to achieve more? Do you think that if the correct channels are followed, more positive outcomes might be achieved in this country?
That’s a good question. We have seen many cases in the past few years coming through the courts, for example, hate speech. Recently, there was the Willem Ackerman case, where he was ordered to pay a R500 000 fine to the Ahmed Kathrada Foundation for hate speech; we’ve had Vicky Momberg, Adam Catzavelos, Penny Sparrow and Belinda Magor-type cases, which have landed up in the Human Rights Commission and in the Equality Court and in the Magistrate’s Court. We’ve had many people being fired because of content on social media. The most effective way to hold people accountable and to get the message through is to send someone like Vicky Momberg to prison for use of the k-word. We had a revenge porn case where someone who shared a sex tape on Facebook non-consensually was ordered to pay over R3 million in damages. We’ve had many interesting defamation cases.
There was a recent case in the Cape High Court with Hank’s Olde Irish Pub, which was sued for defamation; someone said that the institution was racist on TikTok, and was ordered to pay R1,2 million in damages. I think that as much as people feel that social media is the wild, wild west, we have cases that land up with proper sentences. There are high-profile cases in protection from harassment as well. Because of the Criminal Procedure Act 51 of 1977 and children not being allowed to be identified, their identities are not shared, but I can tell you because I know: there are children who have been arrested for sharing content without consent.
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So, people in this country are being held accountable for their actions – adults and children alike!
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So, people in this country are being held accountable for their actions – adults and children alike!
Also read:
Sosialemedia-wetgewing: verskansing, foltering of verheffing?
Sosialemedia-gebruik en kinders: the good, the bad and the ugly