Revenge pornography is the non-consensual sharing of explicit photographs or videos, often by an ex-partner. The intention is to humiliate and shame the subject of that content. This is done through any electronic medium including the internet and social media networking sites as well as pornographic websites.

It also includes photo-shopping or manipulating images or videos. These actions depict the victim in a sexual or pornographic way. The exchange of explicit content amongst adults is permitted, however, it is unlawful to publish that content without the subject’s permission.

Victims may now lay criminal charges against anyone who distributes or shares revenge porn content on social media, in text messages, via any electronic communication including pornographic websites.

The Film and Publication Amendment Act 11 of 2019 (FPAA) came into effect in 2022 and now provides for the criminalisation of revenge porn. In terms of the FPAA, anyone who is charged and found of revenge porn could face a fine of up to R150 000 (one hundred and fifty thousand rands) if the victim cannot be identified in the content and/or could face two years in prison. If the victim can be identified in any way, including but not limited to their face, distinct voice, or their personal information in the revenge porn content, the perpetrator could pay a fine of up to R300 000 (three hundred thousand rand). They could also face up to four years in prison.

The Cybercrimes Act 19 of 2020 is an alternative legal remedy for victims wherein perpetrators unlawfully and intentionally disclose a data message of an intimate image of the subject displayed, who retains a reasonable expectation of privacy, without their consent. The Cybercrimes Act defines the term ‘intimate image’ as a depiction of a person, real or simulated, in which such person is, inter alia, nude or their genital organs are displayed. Perpetrators are punishable by either a fine which has not yet been determined, and/or face imprisonment for a period not exceeding 3 years.

In addition to the criminal sanction, the Cybercrimes Act provides victims of revenge porn with interim relief pending the finalisation of criminal proceedings. Victims may apply for a protection order under section 20 of the Cybercrimes Act to prohibit anyone from disclosing or further disclosing the “data message” relating to the revenge porn charge. Furthermore, an order for the removal or limiting access of the sexually explicit content may be made against any electronic communication service provider whose electronic communication was used to host or disclose the data message which relates to the charge of revenge porn.

Revenge pornography can increase the risk of online sexual victimization and ruin the victim’s self-image, and possibly cause reputational harm on the victims amongst other physical, emotional and psychological effects. The long effect being that sexually explicit content remains on the internet and pops up for every time the victim’s name is searched on the world wide web.

The right to be forgotten is the right of data subjects (people to whom personal information relates) to have responsible parties (the people who hold their personal information) including organisations and natural persons to delete their personal data from their database, servers and from the world wide web.

It gives victims the entitlement to demand search engines, such as Google, not to show results containing old information or content about a person where the privacy rights outweigh the public interest of having continued access to the content and information. Although the Protection of Personal Information Act 4 of 2013 (POPIA) does not explicitly grant data subjects a right to be forgotten, we can interpret section 24 of POPIA to give at least a limited effect to this right.

Section 24 of POPIA, empowers data subjects to instruct responsible parties to delete personal information in their possession or under their control that is inaccurate, irrelevant, excessive, out of date, incomplete, misleading or obtained unlawfully. It also requires responsible parties to delete or destroy records that should no longer be retained.

This provision provides revenge porn victims practical means to have their leaked nudes and explicit content, and their names deleted from any social media platforms, websites and search engines that continue to host this type of content, which ensures that revenge porn victims retain a digital footprint that presents them in their best light when their names are searched on the internet. If the responsible parties refuse to delete the victim’s personal information, the victim may submit a claim to the Information Regulator.

Fortunately, victims revenge porn do not have to rely solely on criminal sanctions; and have the option of pursuing civil remedies insofar justice is concerned. A victim of revenge porn may institute civil action for damages on the basis that such distribution of sexually explicit content without the consent which may constitute the wilful impairment or violation of a person’s dignity and privacy also known as crimen injuria.

Furthermore, In other words, a victim of revenge porn can claim compensation for non- patrimonial losses sustained as a result of the wrongful, culpable act of another which caused injury to the victim’s personality right(s). Depending on the circumstances of the creation of the content the victim may also have a claim in terms of the Copyright’s Act 98 of 1978, which provides for both criminal and civil sanctions.

Please note: The information contained in this article is for general guidance regarding matters of topical interest and does not constitute legal advice