Naming and shaming could cost you legally
Sharing your experience on a public platform can be permitted by the law if it does not publish details of the case
As SA's Covid-19 vaccination rollout programme gets under way, one thing remains clear: the country’s twin pandemics of Covid-19 and gender-based violence (GBV) are not going away any time soon.
While the country has been working at curbing a potential deadly third wave, some survivors of GBV have been waging their own war by naming and shaming their alleged abusers on social media.
This past year, model Lerato Moloi and songbird Lady Zamar dominated the trends lists when they outed their alleged perpetrators on social media. Most recently, big media names such as DJ Fresh and DJ Euphonik were implicated in serious GBV-related allegations that played out on social media.
But where does the law stand when it comes to naming and shaming?
Diana Schwarz from Diana Schwarz Attorneys, a law firm specialising in social media law, says it’s unlawful to "name and shame" your alleged abuser on a public platform.
"If an alleged sexual perpetrator is named and shamed online by an alleged victim without being convicted of such an offence by a court of law, the accused has various legal remedies available to them, such as suing for defamation (monetary damages for impairment of reputation) or laying a criminal charge of crimen injuria (infringement of dignity),” says Schwarz.
Taking matters to social media might be seen as brave and courageous by the general population, but could end up costing the victim legally. The rise of the #MeToo and #IBelieveHer movements that provide solidarity for victims, mostly exist and play out on social media. While the intention is to provide a safe space for comfort, relatability, and possible justice, that is not what materialises in terms of the law.
“The wheels of justice may turn slowly but have prescribed processes that must be followed, which at times may not cater to the emotional needs of the victims. As an impartial structure, it requires victims and perpetrators to adhere to certain rules and limitations that are put in place to honour justice including the protection of identities of both the victim and the alleged perpetrator in sexual offence cases.
While sharing your experience can be permitted by the law if it does not publish details of the case, it is unlawful to name and shame the alleged abuser,” says Schwarz.
The best remedy, she advises, would be to get the help of an organisation that assists victims in following the correct legal processes in GBVH cases such as, a law clinic, POWA, or Lawyers against Abuse organisation to assist in filing criminal charges at your nearest police station or proceed with a civil legal process suing for damages for the harm caused by the offence as soon as possible.
With a subject as emotive as sexual violence in a country that leads in femicide and GBV statistics, it's understandable that women are angry and tired of living in fear. However, choosing to out an alleged perpetrator on social media by “naming and shaming” can lead to further trauma and secondary victimisation as well as exposing the alleged victim to legal action by the alleged perpetrator.
If you are a victim of GBV, or you know someone who is, contact the national GBV command centre, which operates 24/7. Call 080-042-8428, or if you are unable to speak, you can send a “Please Call Me” by dialling *120*7867# or SMS “help” to 31531.
Correction: March 9
This article was updated to clarify quotes by Diana Schwarz on what is permissible by law in terms of posting images of alleged abusers.
This article was paid for by The Solidarity Fund.