Faith Nketsi could have her revenge the legal way

The streets of social media are unrelenting and dirty. In a world where thumbs can be as weapons of mass online destruction, embarrassing and explicit leaks can make or break a reputation.

But all this could change with the latest attempts by the Film and Publication Amendment Bill to regulate what has become a free-for-all on social media and online space in South Africa.

An Instagram video showing South African entertainer Faith Nketsi, also known as Queen Twerk, and her boyfriend having oral sex, among other things, caused a social media frenzy. The video was quickly removed and Nketsi posted a statement to her 171 000 followers saying the video had been leaked.

“Last night, a private video was posted on my Instagram without our knowledge. We did not know how it happened or when it happened but it was immediately removed,” she wrote, pleading with “the media and everyone who has an opinion to respect their privacy”. It was too late – the video had already been downloaded and disseminated widely. Screen grabs were posted on Twitter and the hashtag #QueenTwerk trended for almost 23 hours.

Revenge porn is loosely described as the distribution of private sexual photographs and films without consent from the individual featured. United States-based legal advocacy group Cyber Civil Rights Initiative prefers to use the term nonconsensual pornography (NCP), saying many perpetrators are not motivated by revenge or personal feelings towards the victim featured on the content.

This means anyone who gets their virtual hands on explicit content without knowing its origins and who republishes it without the featured individual’s consent can be seen as a perpetrator of revenge porn or NCP.

In developed countries like the United Kingdom, revenge porn is illegal and can result in up to two years in jail. South African legislation is slowly catching up; many users remain unaware of criminal charges they could face for republishing private explicit content online.

Emma Sadleir, a South African media law expert and coauthor of Don’t Film Yourself Having Sex (2014), says South Africa badly needs its own revenge porn legislation.

The Film and Publication Amendment Bill is awaiting public comment. The amendments state that no person may post private photos or films on the internet without consent of the individual depicted or with the intention of causing the individual distress. If this Bill is passed, South African offenders could face two years in jail and a R150 000 fine.

The Bill is the Film and Publication Board’s attempt to extend the scope of its classification powers into the digital realm, which is poorly regulated in South Africa. Industry players and activists have raised concerns over the extent of the proposed amendments, which they say could result in censorship and put the squeeze on small independent publishers and bloggers who may have to register with the board and have their contents classified.

Nketsi could take action based on existing legislation. If she did not publish the video “then the person who intercepted and published the content can be found guilty of unlawful interception of data, under section 86 of the Electronic Communications and Transactions Act of 2002”, said Sadleir.

Contrary to reports saying otherwise, Nketsi’s Instagram account was initially set to private – a crucial element. Even with 171 000 followers, “she does have a privacy claim over those people and maybe a criminal charge of infringement of dignity could be taken”, said Sadleir.

Under common law in South Africa provision is made for a reasonable expectation of privacy under a particular set of circumstances. Therefore, as the account was initially set to private, those who had redistributed the content could be held legally liable.

Nketsi’s statement that the video was leaked was called into question by her detractors: “I saw the Queen Twerk Video live … Lord have mercy … That can’t be a mistake! You can’t pocket load a vid,” read one tweet from actor Siv Ngesi.

But mistake or not, if the Bill is passed, people like Nketsi would have a much bigger stick to enforce their privacy online.

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