Spite and humour can cost you R300,000 in a revenge porn fine

Those sharing the leaked sex tape of social media influencer Gcinile Twala could face up to four years in jail and a R300,000 fine for distributing revenge porn.

The topic of revenge porn resurfaced this week when Themba “Grootman” Sehlale allegedly leaked a video of himself having sexual intercourse with Twala, his former fiancée, without her consent.

The sex tape leak comes a week after the Durban high court interdicted a businessman from further distributing a video of his estranged wife having a sexual encounter with another woman, which he had shown to several people.

It’s a very serious crime. Every  person in the chain of publishing [revenge porn] content is responsible for that publishing. Every time you click ‘forward’, that is a fresh publication. Every time you show it to somebody, that is a fresh publication

—  Social media law expert and The Digital Law Company CEO Emma Sadleir

Those who share sexual content, including the leaked video of Twala and Sehlale, could be charged for revenge porn each time they share it or show it to someone else, said social media law expert and The Digital Law Company CEO Emma Sadleir. 

“It’s a very serious crime. Every person in the chain of publishing [revenge porn] content is responsible for that publishing. Every time you click ‘forward’, that is a fresh publication. Every time you show it to somebody, that is a fresh publication. These are very serious criminal issues. I urge everyone who has this video in their possession to delete it and not share the content further because each sharing constitutes a fresh criminal offence,” Sadlier told TimesLIVE Premium.

Cyber law experts said spite, humour, sensationalism and lack of awareness about the law were reasons that revenge porn is prevalent, despite the crime carrying a hefty fine or time in prison.

“Spitefulness, revenge, some find it funny, some are sensationalists, all those words [can be the reason people do it]. I always ask, why take this content in the first place because how do you know the person you love today doesn’t hate you tomorrow? Don’t take pictures of yourself in intimate compromising conditions,” said adjunct professor at Nelson Mandela University and cyber law attorney Sizwe Snail ka Mtuze.

What the law says

Legislation criminalising revenge porn is fairly new and therefore social media users are not aware of the provisions which regulate and criminalise the act, said Janet MacKenzie, partner and head of the IPtech practice at Baker McKenzie Johannesburg.

The Film and Publication Act (FPA) and the Cybercrimes Act both prohibit revenge porn and came into force in 2019 and 2021 respectively.

“The amendments to the FPA and Cybercrimes Act are relatively new and I am of the view that though the offence of revenge porn has been widely publicised, there may not be sufficient awareness of the revenge porn provisions and more generally of the responsibility all individuals have when engaging with social media,” MacKenzie told TimesLIVE Premium. 

Previously, the constitutional right to privacy and dignity regulated revenge porn and one could be charged with crimen injuria.

However, section 18F of the FPA, which came into effect in 2019, prohibits the distribution of private sexual photos through any medium, including the internet or social media, without the consent of the person filmed or photographed and intending to harm the person, MacKenzie said.

“The prohibition applies even if the person in the photograph or film consented to the creation of the original photograph or film,” she said.

The Cybercrimes Act prohibits the publishing of breasts or genital areas or anyone engaging in sexual conduct without the person’s consent.

“You will be guilty of revenge porn if it is distributed electronically. The person in the video must be able to be identifiable or be described. There is also the right to privacy and the right to dignity in the constitution, and any sharing of data, pictures or videos which fall within the intimate image as per section 16, can be criminally sanctioned,” said ka Mtuze.

Being vengeful and sensational comes at a price. Sehlale, if convicted, could be sentenced to imprisonment or pay a hefty fine.

“The Cybercrimes Act says any person who contravenes the provisions of section 16 is liable for imprisonment not exceeding three years or a fine or both a fine and imprisonment,” said ka Mtuze.

The FPA sets out a fine not exceeding R150,000 or a maximum of two years imprisonment. The punishment increases to a R300,000 fine or not exceeding four years imprisonment should the person in the revenge porn be identified or identifiable.

“A defence to a charge of revenge porn under the FPA is if the person responsible for the disclosure proves the disclosure was necessary to prevent, detect or investigate a crime,” said MacKenzie.

Durban high court judge Robin Mossop relied on the constitution to interdict the businessman who had tried to use a sex tape he had recorded of his wife having sex with another woman.

The man claimed to have recorded CCTV footage in their home in June 2019 to use it in their acrimonious divorce to bolster his case when it came to custody of their son. He denied showing the video to others, but two witnesses testified he had shown them the footage.

“His denial that he did so cannot be accepted. That conduct in itself is a criminal offence. It is not against the law to do what she did during the encounter. He, on the other hand, has no right to know what she did, let alone tell others what happened or show them what she did. There can be no doubt that her rights to privacy have been seriously compromised.

“[The man’s] conduct towards the [wife] has been designed to cause her embarrassment and to humiliate her, and the consequences for the [wife] may be catastrophic if he attempted to do the same in future,” Mossop said.

Nonprofit organisation Women for Change called for Sehlale’s arrest for the “heinous act” that left Twala traumatised.

It said: “The video has been widely trending on social media, and every share, comment and view adds another layer to that trauma. We demand justice for Gcinile. ‘Grootman’ must be arrested and held accountable for his actions. We call on all law enforcement, policymakers and community leaders to take a stand against revenge porn and all forms of gender-based violence. Arrest ‘Grootman’.” 

Meanwhile, Vanita Daniels, director at Rise Up Against Gender-based Violence spoke of the devastating, long-lasting impacts of revenge porn.

“I don't think we can actually quantify the levels of trauma that someone must be going through at that particular point in time. We have seen cases where victims have gone into hiding and shut down all of their social media.

“Even though the attention span of the internet is like a gold fish, the fact of the matter is your images are out there on the internet, and anyone can access it at any time — your parents, your children, your partners can see that.” 

Speaking on the fine and potential jail time, Daniels said: “I don't think we are doing enough as a society to be able to punish perpetrators. Yes, there is the legal aspect, but then again it places the burden on the victim to have the money to go to court and go through the second victimisation of the justice system only to get justice. And most of the time, nothing ever happens to the perpetrators who release these images.”