Meta Platforms, which owns Instagram and WhatsApp, is facing being held in contempt of court for failing to comply with a court order concerning Instagram handles and WhatsApp channels that were posting child pornography .
The Digital Law Company (DLC), which is litigating to protect the children, has asked the court to order that if Meta does not comply with a new Saturday deadline, one of its officials should be committed to imprisonment.
The litigation concerns Instagram profiles and WhatsApp channels that were posting “graphic child pornography, devastating personal information, allegations of children being HIV positive, all while identifying individuals and schools,” the DLC’s Emma Sadleir said in court papers.
An annexure to the court papers attached some content that had been uploaded on the profiles. It included a video of what was claimed to be schoolchildren having sex in toilets, posts of children’s names and their schools claiming they had sexually transmitted infections and pornographic photos and videos of young girls.
After an urgent application on Monday, the Johannesburg high court ordered Meta and three officials to immediately and permanently remove six WhatsApp channels and 30 Instagram profiles. It also ordered them to immediately and permanently disable the person behind the accounts from creating further profiles and to hand over information about the identity of the person.
After the court order, the named Instagram profiles and some WhatsApp channels were deleted, either by Meta or their creator, but some remained active. With the WhatsApp channels that had been deleted by the creator, the content on them continued to be available to those who had followed it when they were active, said Sadleir.
New profiles began to emerge. New WhatsApp channels and Instagram accounts were “being created every few minutes, soliciting and publishing private and pornographic information, images and videos involving South African children”, Sadleir said in the contempt application filed in court on Wednesday.
“That is why the order to disable and the disorder to disclose are so important,” she said.
Meta was evidently determined to make service and enforcement as difficult as possible
— DLC’s Emma Sadleir in court papers
Sadleir said Meta knew about the court’s original order on Monday. So did Thabo Makenete, “Meta’s most senior official in South Africa”. They had the capability to comply. This could be seen by the fact that some WhatsApp channels were deleted but they had not.
“We are left to assume their non-compliance is wilful and mala fide [in bad faith],” said Sadleir.
The DLC will on Friday ask the court to declare Meta and Makenete in contempt, and to order them to fully comply with the Monday order by not later than 2pm on Saturday. If they fail to meet the Saturday deadline, the DLC would be able to go back to court “for a writ committing [Makanete] to imprisonment” for 30 days or until such time as the order is complied with.
Sadleir said while the DLC had received correspondence from Facebook South Africa that it had used the wrong physical address when it sent its original letter of demand, Makenete and another official told the DLC’s attorneys they had received the letter.
“Neither claimed not to be authorised to receive and attend to the letter on behalf of Meta. On the contrary, they clearly indicated they were,” said Sadleir.
Bowman Gilfillan, the lawyers for Facebook South Africa, whose physical address was used by the DLC, said the letter should have been sent to a US address. Facebook South Africa was a different legal entity to Meta, said Bowmans.
While it was clear Bowmans was receiving communication from Meta, “they were not prepared to give us a phone number or email address for Meta’s legal department in California,” said Sadleir.
“Meta was evidently determined to make service and enforcement as difficult as possible,” she said.
On Tuesday, the DLC’s lawyers, Rupert Candy Attorneys, sent another letter of demand, demanding compliance with the court order, particularly the orders to disable the person behind the accounts and to disclose information about him or her, she said.
“To date we have received nothing from Meta or the officials explaining why they have not been able to comply with the order to disable or the order to disclose,” she said.
The contempt application was urgent, she said. The DLC had received reports, “admittedly unverified”, about two children targeted by the perpetrator who had ended their own lives after the court’s order on Monday, she said.
“The perpetrator is not going to stop the campaign of terror on his own. He must be stopped.”
Meta was the only one who could stop him, Sadleir said.
Meta and Makenete have been asked to file answering court papers by Thursday night.
TimesLIVE
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