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Social Media Law

Social Media Law, with special reference to children

By 20/11/2013 No Comments

The advent of social media and networking in the 21st Century has taken the entire world by storm and is regrettably not without its faux pas. In a world where one billion people use Face book on a daily basis and where there are five hundred million registered Twitter accounts it is inevitable that children, through the course of their education, will gain access and utilise the various aspects of social media and networking.

The Constitution provides that every child in South Africa has a right to be protected from any kind of abuse.  It is now necessary, more than ever, not only to protect children but to educate them of their legal rights, obligations and risks placed on every person who utilises social media and networking.
The starting point in this education is firstly to understand that social networks reside on the internet in the realms of cyberspace and don’t actually form part of a real or corporeal world. However, although they reside in cyberspace it is important to understand that, in South Africa, whatever laws apply to the real and corporeal world are also applicable to the world of cyberspace, the world wide web and by extension social media and networks.

There is no such thing as on-line anonymity, every action or step taken on-line is recorded, falls within the public domain and once taken cannot be deleted or altered by choice. This is relevant when considering how to educate children on the use of social media and networks because any step a child may take on-line is automatically recorded in a public domain and may constitute a legal act with legal consequences.
While children under the age of 18 (eighteen) may not have the legal capacity to act, it is possible that their actions, statements and even omissions may lead to legal liability for their parents or guardians.

With children usually being more technologically adept in comparison to their parents, this presents a problem for parents to ensure their children are educated and protected in respect of the use of social media and networking. Recently the, education and protection of children has been highlighted in South Africa in cases where children have been victims of harassment and sexual grooming via social media and networking.

Defamation

When a rumour is spread which places the person in a compromising or bad light, it is possible that such rumours or statements could be defamatory. Defamation is basically any conduct which damages or impinges on someone’s reputation.

South African law protects a person’s reputation against unjustified publications, whether oral or in writing, of anything which could damage a person’s reputation by allowing the person to either claim an amount as damages or force them to stop their conduct (interdict).

Remembering that the laws of the real world apply to the world of cyberspace, defamation can occur over social media and networking. It is important to note that the potential for legal liability doesn’t only apply to the person who initially made the statement. South African law provides that every person that forms part of the chain of publication of a statement can be sued or held responsible for the content contained in such a statement. It is therefore possible to hold a person responsible for re-publishing, “sharing” or “re-tweeting” any statement which they know or may reasonably know is defamatory.

A recent example of this occurred where a woman from Pretoria and her husband were ordered by the court to pay R 40 000.00 (forty thousand rand) in damages to the husband’s ex-wife after the couple had made defamatory statements about her on Facebook. In this particular case the husband was merely tagged in his wife’s defamatory posts and the court found this to be sufficient for him to be coupled in the offence of defamation.

It is clear that in a child’s environment, where name calling and bullying are common place, and ever more so on social media and networks, defamatory statements and acts can occur on a daily parents. Parents and children should be cautioned to refrain from making any statement which is potentially defamatory, keeping negative feelings or remarks to themselves and using the full force of the law to defend a child who is a victim of such behaviour.

Trolling

In the world of cyberspace trolling is becoming a common occurrence. A “Troll” is a person who deliberately and continually posts provocative or abusive messages to which are intended to cause pain, distress disruption and argument. In basic terms a “Troll” can be described as an on-line bully who feels fulfilment from other people’s pain or distress.

As of 27 April 2013 the Protection of Harassment Act was introduced to protect people from the acts of a “Troll”, among other things.The Act and affords every person the right to initially have an order directing a service provider, such as a social network or cellular network, advise their client to stop the harassment, and failing this a final order can be made forcing the network to hand over the details of the harassing person so that further civil and criminal action may be taken against him or her.

If you are experiencing “trolling” the first step is to report the incident to the service provider. If reporting incidents doesn’t provide a remedy, then you may approach the court for further relief in terms of the Protection of Harassment Act. Below are a few links for social networks where you can report such incidents:

How to report abuse on Facebook – http://www.facebook.com/help/?page=247013378662696
How to report abuse on Twitter – https://support.twitter.com/forms/abusiveuser
How to report abuse on LinkedIn – abuse@linkedin.com
How to report abuse on YouTube – http://www.youtube.com/yt/policyandsafety/

Outside South Africa some cases of “trolling” or cyber-bullying have resulted in the death of young children. The number of victims of “trolling” in the United Kingdom more than doubled from August 2012 to August 2013. Parents need  take an active role in their children’s social lives to understand whether any form of bullying or “trolling” is taking place.

Conclusion

Our world is constantly changing, with it our technology and as a consequence our lives and that of the children in today’s society are effected by this ever-growing change. From the above it is clear that we not only need to educate both parents and children of what not to do, but it is also imperative that we teach them how to protect themselves from the harms of using social media and networks.

 

Ian Mc Laren

Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens Attorneys September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.