Cyberbullying, sexting and the law

Cyberbullying, sexting and the law

We spoke to an expert on social media law and learned some surprising facts…

cyberbullying, sexting and the law We spoke to an expert on social media law and learned some surprising facts…

Social media has grown quickly into a massive, ever-evolving organism online, spreading to the farthest reaches of the population. It’s hard to believe social media giants Facebook and Twitter only went live in 2006, with Instagram launching a few years later in 2010. For many people, checking their various profiles has become a regular routine to catch up on news, see what their friends and family are up to, surreptitiously spy on acquaintances and take a peek at new pics.

Social media is now so normalised and so ubiquitous that it’s hard to remember a time before its arrival. But even though we’ve accepted it and regard it as mostly harmless, do we really understand it? More importantly, with the speed of its development, what are the implications of social media on our kids? It’s more important than ever to ensure your children are conducting themselves within the law online, and to be aware of how the law can protect them when they venture into an online space crowded with strangers.

We spoke to Emma Sadleir, South Africa’s leading expert on social media law, founder of The Digital Law Company, and co-author of Don’t film yourself having sex… and other legal advice for the age of social media and Selfies, sexts and smartphones: a teenager’s online survival guide (Penguin Random House).

Understanding your child’s online experience

Your social life is very different to your children’s , so it’s safe to assume your online experience also looks very
different to theirs. But do you know just how different?

A 2016 study conducted by members of the Centre for Justice and Crime Prevention, titled South African Kids
Online: Barriers, opportunities & risks, found more than 86% of parents thought their child hadn’t experienced anything that bothered them online in the past year, and didn’t think it was likely something would bother them in the coming months.

‘When asked if their children had experienced any specific victimisation online, most parents were confident to say their children had not, even when they had the option to say they did not know whether their child had experienced anything,’ the study reveals.

In contrast to the parents’ comments, the children’s responses (aged 9-17) provided some chilling findings:

  • More than a quarter of the kids had personally been bothered by something on the internet in the past year.
  • One in three kids had been exposed to hate speech and gory images online.
  • About one in five reported having been treated in a hurtful or nasty way.
  • When asked if they’d ever had contact with someone online whom they’d never previously met face-to-face, 41.2% said they had, at least once.
  • Of the kids who said they’d had contact with a stranger online, more than half said they’d met with someone face-to-face whom they’d first got to know online in the past year.
  • More than half said they’d seen sexual images online in the past year, and one in three had received
    a sexual message.
  • One in five child participants had been sent a message they didn’t want with advertisements for or links to X-rated websites.
  • Almost a quarter of the kids had seen or received a sexual message, image or video about someone
    else that they didn’t want.
  • More boys than girls experienced this kind of unwanted sexual contact, but more girls than boys had been asked unwanted sexual questions about themselves.

The dangers of social media

While many kids occasionally come across something or someone online that bothers them, most are able to carry on
as normal. Social media is largely that – social, a way to chat to friends and share interests. However, there’s also a darker side. We asked Emma for examples of legal lines being crossed on social media in ways that were harmful to kids, and off the top of her head she recalled two recent legal battles involving teens.

The first is the case of a Rondebosch youth pastor who was arrested after allegedly grooming more than 60 teenage boys into sending him nude photographs via Instagram, by creating a fake female profile.

The second is an incident that took place on a WhatsApp group, consisting of ex-students of a South African all-boys
school. The boys had seen a Snapchat photo of a girl wearing an ‘old boys’ cap at a party, which apparently aggravated them. The boys proceeded to make derogatory comments about the girl on WhatsApp, and even went so far as making a new group and adding her to it in order to bully her and send sexual threats. This year, three years after the bullying began, the girl has opened a case in the Equality Court against each of the 28 members of the WhatsApp group. The boys could be held liable, even if they didn’t post any messages to the chat.

Do teens know they’re breaking the law?

This might seem like a strange question, but social media comes with some legal grey areas. Added to this is the feeling it’s somehow completely separate from ‘real life’. Kids, especially teens, might be acting in ways online that they know are misbehaviours, but might not understand are illegal. Emma says the two biggest legal social media
issues in schools around the country are sexting and cyberbullying.

‘When it comes to sexting, many young people don’t realise that just by taking a sexually suggestive photo of a teen, even if the subject is clothed, could make them guilty of creation of child pornography in terms of South African law.
Depending on what is done with the content, that person could also be guilty of disseminating or possessing child pornography. One could even be guilty of the solicitation of child pornography if they ask another teen for nudes,’ Emma explains.

As for bullying, the online world has produced new and often worse ways for bullies to operate. ‘People seem to believe there is some sort of immunity if they’re behind a screen. They’ll say things that they would never in a million years say to someone’s face. We are specifically seeing this take place on anonymous platforms such as Qooh.me or when people create anonymous accounts on social media apps such as Instagram,’ Emma says. But online bullies are not immune from the law, even if they’re children.

Emma outlines the laws that help to protect kids against cyberbullying: ‘If a child is being cyberbullied or harassed online, they can obtain a protection order from a magistrate’s court in terms of the Protection from Harassment Act. Another option available is to lay a criminal charge of crimen injuria if the bullying is particularly bad.’

Teens can suffer from the same repercussions as adults for what they do and say online. In terms of South African law, a person has criminal capacity from the age of 14. There’s also a legal ‘grey area’ when between the ages of 10 and 14. In those cases, the court will look at the individual, their upbringing, schooling as well as other factors in
order to determine whether the person has criminal capacity. The age of civil capacity in South Africa is seven, which means you can sue or be sued in your own name from as young as seven.

10 ONLINE SAFETY TIPS TO HELP YOUR KIDS

What can you do?

You need to become active in your children’s cyber-lives, even though it might be out of your comfort zone.
Keep the conversation open and make sure your children feel comfortable approaching you. Emma offers some
practical tips:

  • Model good phone behaviour – parents cannot expect their children to be disciplined about their phone
    usage if they’re not disciplined themselves. Parents need to set their own boundaries for the amount of
    time spent online as well as the type of content shared.
  • Set ground rules for the sharing of personal information and talking to strangers.
  • Consider setting up a smartphone contract between you and your kids to monitor appropriate use of devices. There’s a great example available on The Digital Law Company website.
  • Turn off location services on your children’s phones.
  • Set up social media accounts together with your children to ensure that all privacy settings are activated and don’t include personal information such as date of birth.
  • Consider installing filtering software on their devices to prevent access to harmful content and sites.
  • Install tracking software, which comes free on most smartphones. For example, ‘Find my iPhone’.
  • Manage time spent online. It’s strongly recommended that you set boundaries regarding time spent
    online. Create phone-free zones or times in the home, whether it’s at meal times or an hour before bed.
    Smartphones and apps are designed to be totally addictive. Excessive use can be damaging to the developing teenage brain. Everybody needs some downtime.
  • Don’t allow the use of phones next to beds – the blue light emitted from smartphones hampers the production of melatonin, a chemical needed to help sleep.

Protecting your children’s privacy

Everyone is entitled to the right to privacy in terms of our Constitution. The legal position on privacy in South African law is quite simple – the more we protect our own privacy, the more privacy we have. ‘What this means,’ Emma explains, ‘is that if you are posting your every move, plastering your children’s faces across social media and making
your information readily available on your Facebook profile, then you’re not taking reasonable steps to protect your own privacy.’

This unfortunately means if someone uses this information against you or your children, or further disseminates it,
there may not be much legal protection. Emma also warns, ‘The other thing to keep in mind is while we don’t pay for the services of social media apps, we do pay very heavily with our personal information. We all sign terms and
conditions before creating social media accounts (or press “agree”), but these can be changed or even relaxed overnight.

Therefore, what is private today, may not be private tomorrow, and there is not much we can do about it!’ The safest approach, according to Emma, is if there is something you wish to keep private, keep it off social media, and make
sure your kids know to do the same.

FEATURE: CAITLIN GENG PHOTOS: FOTOLIA.COM

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