Summary
Criminal Law 451 Section B Summary
- Course
- Criminal Law 451
- Institution
- Stellenbosch University (SUN)
Neat and comprehensive summary of the coursework prescribed for Section B of the Criminal Law 451 module.
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By: npc1304 • 1 week ago
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SECTION B: ORGANISED CRIME, CORRUPTION AND CYBERCRIMETopic 1: Non-Consensual Pornography
Introduction
• The rise of cybercrime
o The nature of the law constantly needs to adapt in the digital era due to the
increased use of digital means to commit crimes. It has almost become easier
to commit crimes.
• Example of NCP
o Bobby and Whitney, both 21-year-old students, met on Tinder and they start
participating in a passionate texting affair. One day, Bobby asks Whitney is
she can send him a nude. Initially, Whitney is not too keen, but Bobby insists
and later, Whitney acquiesces. To Whitney’s dismay, she later finds a picture
of herself on Pornhub. What to do know? Presume this is 5 years ago and we
do not yet have the Cybercrime and Cybersecurity Act or a Films and
Publications Act. Whitney will go to the police station and the first thing the
police ask her is what crime was committed. What would her answer be?
o Two options:
1) Violation of privacy and dignity
§ But it is very expensive to sue someone in delict and therefore
difficult for victims to seek justice.
2) Crimen injuria
§ However, before we could get there, the police officer would
point Whitney away because they did not know about the, now
existing, crime of NCP.
• The developments with regards to NCP:
a) The Film and Publications Amendment Act 11 of 2019 (“FPAA”)
b) Cybercrime and Cybersecurity Act 19 of 2020 (“CCA”)
Defining NCP
• Terminology
o We use NCP and not “revenge porn” because the latter presupposes that the
crime only arises in cases where the guilty party seeks revenge.
o Motive is not relevant when it comes to NCP.
• “Non-consensual”
o We are concerned with the non-consensual distribution, although the
material might have been created with consent.
• The constitutional rights involved
o Privacy
o Dignity
o Freedom of expression for the accused?
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, However, privacy and dignity far outweigh the right to freedom of
§
expression, and we therefore do not have to really consider this a true
battle between rights.
• Impacts of NCP?
Musoni, M “The Criminalisation of “Revenge Porn” in South Africa”
The effects of revenge porn
1. Revenge porn raises the risk of off-line and physical attacks due to perpetrators posting
the full name, address and telephone numbers of victims next to the photo/video.
2. It is a form of domestic abuse and violence where the party possessing the intimate
material uses it as a bargaining chip, thereby discouraging the victim to leave the abusive
relationship.
3. Victims lose their online liberty and autonomy and are robbed of their freedom to
construct their own identity. A withdrawal from social media could also impair their
ability to obtain employment in the future.
4. Victims, in some cases, suffer of PTSD and they feel shame and embarrassment which
increases the risk of suicide.
5. Victims are more likely to get their professional life affected if there are sexually explicit
photographs of them on the internet. Many employers will not want to be associated
with people who have a negative image online and will not employ victims of revenge
porn.
6. Revenge porn is a gender-based form of cyber-rape and harassment with the majority of
its victims being women and girls while those who run revenge porn websites are
predominantly male.
The Film and Publications Amendment Act 11 of 2019
• Criminalisation of NCP
Prohibition against distribution of private sexual photographs and films
18F. (1) No person may expose, through any medium, including the internet and social media, a private sexual
photograph or film if the disclosure is made—
(a) without the consent of the individual or individuals who appear in the photograph or film; and
(b) with the intention of causing that individual harm.
(2) It is a defence for a person charged with an offence under this section
to prove that he or she reasonably believed that the disclosure was necessary for the purposes of preventing,
detecting or investigating crime.
(3) The prohibition referred to in subsection (1) shall apply notwithstanding that the individual who appears in the
photograph or film might have consented to the original creation of such photograph or film.
(4) For the purposes of this section and section 24E a photograph or film is ‘private’ if, judging from the context in
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which the photograph or film is taken or made, it was not intended by any individual in the photograph or film to be
seen by others.
, (5) For the purposes of this section a photograph or film is ‘sexual’ if such photograph or film—
(a) it shows all or part of an individual’s exposed female breasts, anus, genitals or pubic area;
(b) it shows something that a reasonable person would consider to be sexual because of its nature; or
(c) its content, taken as a whole, is such that a reasonable person would consider it to be sexual.
(6) For the purposes of this section and sections 24E, 24F and 24G, the internet service provider shall be compelled
to furnish the Board or a member of the South African Police Services with information of the identity of the person
who published the private sexual photograph or film.
• Elements
1) Private sexual photography or film
o Section 18F(4) – “Private”
o Section 18F(5) – “Sexual”
o Section 1(h) – “Film” = means any sequence of visual images recorded in
such a manner that by using such recording, such images will be capable
of being seen as a moving picture, and includes any picture intended for
exhibition through any medium, including using the internet, or device.
2) Exposure, through any medium, including the internet and social media
o It is the exposure of the material that amounts to unlawfulness.
o Who will be liable?
o Musoni, M
§ Only the original poster (the one who knew of the lack of
consent) can be held liable.
o Van Der Line, DC
§ There is nothing in the Act that prohibits everyone from
being held liable provided that all the elements are proven
respectively.
o “Any medium”
o Internet as defined in section 1(k) of the FPAA read with section 1
of ECTA.
o Social media as defined in section 1(u) of the FPAA.
o Messaging services such as WhatsApp, iMessage, Telegram, etc.
3) Intent to cause harm
o This serves as the limiting requirements.
o Intent would usually take the form of dolus directus or dolus eventualis.
o Actual harm is not required, as long as there was an intent to cause harm.
o Sadlier, E suggests that negligence should rather be the test but Van Der
Linde, DC does not agree.
o To determine what would constitute harm, one can turn to the definition
of “harmful” in section 1(j): “Causing emotional, psychological, or moral
distress to a person.
o NB: It does not refer to financial harm.
4) Lack of consent
o The wrongfulness of the conduct (that is, distribution or exposure) lies
within the lack of consent.
o Exposure itself is not unlawful, but when the consent to do so is absent is
becomes unlawful.
o NB: If consent is present, there will be no liability regardless of the
existence of an intention to cause harm. To constitute the crime under
the Act, there must be a lack of consent AND an intention to cause harm.
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