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THOUGHT OF THE WEEK Distribution of sensitive details about others

Break-ups are never pleasant and more often than not bring out the worst in someone you once loved and trusted. If your former partner is in possession of content which could be harmful to your reputation and threaten to expose you, this would naturally cause you added emotional and psychological distress in an already difficult situation.As of the end of 2019, anyone who shares explicit pictures or videos without the consent of the person featured in it, can be brought to task, with a hefty fine or even time behind bars. The Films and Publications Amendment Act, 2019 brought about changes specifically related to the act of sharing private, explicit content. In terms of the Act, anyone who knowingly shares or distributes nude or sexually explicit material with the intent of humiliating or “getting back” at someone, can be criminally prosecuted.

“Sharing” and “distributing” includes, as the Act specifically mentions, publication via the internet, any form of social media or any other electronic mediums. This covers a wide range of sharing platforms such as, but not limited to, Facebook, WhatsApp, Twitter, Instagram, Snapchat, text messages, e-mail or any website. 

Even if the individual appearing in the explicit content has consented and taken part in the production thereof, in no way can this be construed as consenting to the distribution thereof for the purpose of the Amended Act.

To assist with bringing perpetrators of such a shameful violation to task, the Act has made provision for the perpetrator to be identified through a technological fingerprint.  The internet service provider will be compelled to disclose to the investigating officer the identity of the person who published the private sexual content.

The Act also differentiates between instances where the person in the content is or is not identifiable. In instances where the person is not clearly identifiable, the perpetrator shall be guilty of an offence and liable upon conviction to a fine not exceeding R150 000 or to imprisonment for up to two years or both. If the person in the footage is identifiable, the fine can be as high as R300 000, and the period of imprisonment as long as four years. An order can combine both these sanctions. These amendments prescribe a hefty price tag for vengeance and will hopefully make begrudged former partners think twice before sharing intimate content with third parties.

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This article is not intended to constitute legal advice and is produced for information purposes only and to provide a general understanding of the legal position relating to the topic. It is recommended that advice relating to the specific circumstances of your situation be sought from our attorneys before acting upon the content of this article. This article was written at a particular point in time and accordingly may not always reflect the most recent legal developments, if any, applicable to the relevant topic. Kaplan Blumberg and its partners and/or employees, are not responsible for any consequences which may follow upon any decision taken to act upon the information provided in this article.

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