Nolundi Bomela, Daluxolo Hoho social media tiff: Trolling impacts on a person’s right to dignity
Legal recourse available in SA if a person suffers harm online
The bitter waters of dispute between gospel musician Nolundi Bomela and poet and musician Daluxolo Hoho, have swelled into a tempest of defamatory hearsay from both parties.
Every blow was played out before Meta and TikTok audiences last week.
Allegedly dating as far back as 2016, the accusation is that Hoho claims he and Bomela were married and have a child together. According to Bomela, in a Meta video, this is far from the truth and she claims she has never been married. It also involves other accusations about people close to Bomela.
In the video, Bomela’s representative mentioned that Hoho may be suffering from a mental illness, claiming he had ceased taking his mental health medication but continued with prescription for his high blood instead.
Responding to a TikTok comment where he insinuated that Bomela was loose, Hoho clapped back. He claims he sent Bomela multiple DM’s warning her of the consequences should she not respond to him, in the same breath saying this matter should be resolved through professional channels.
“With cyberbullying, the conduct of the perpetrator may be a crime in terms of the common law. Some examples would be that of crimen injuria, which is the unlawful, intentional and serious violation of the dignity or privacy of another, as well as that of criminal defamation,” advises Ulrich Roux, director of Ulrich Roux and Associates.
“Cyberbullying or trolling impacts on a person’s right to dignity in a manner that lowers their reputation, the victim may institute proceedings based on defamation. Whilst the constitution protects the rights of the victim, a claim for defamation is not based on the constitution but is founded in the common law.” he further adds.
Founder of The Digital Law Co and foremost social media law expert Emma Sadlier says there is available legal recourse that an individual can pursue whether they suffer harm in real life or online.
“If there is a victim of threatening, stalking, harassing behaviour, then in the real world or online you can get a protection order from the other person under the Protection and Harassment Act and other legal avenues, such as seeking compensation.”
“To open a protection order you must show that you suffered harm, or the fear of harm. This can be mental, emotional or psychological harm. If they breech it, in as much as they send you an SMS, that person can be arrested. Many people who have been found in beech of a protection order because of social media have been arrested.”
“The specific rights of a person that are impacted by cyberbullying or trolling will be determined with reference to the way the cyberbullying or trolling is perpetrated. The extent and effect of the cyberbullying or trolling will furthermore need to be considered, but it may infringe on a person’s right to privacy, dignity and right to freedom and security of the person,” Roux says when asked about the indicator that determines the infringed rights versus and the harm inflicted.
Both Roux and Sadlier agree that the legislature encompassing Mzansi’s cyber-crimes is great off-line, its test is determined in whether it can update itself to match the evolving realm of social media. Roux highlights the need for propagation of legislation that directly addresses the harmful actions.
“The Cyber Crimes Act and the Protection from Harassment Act in SA has made progress towards addressing the problems of cyberbullying and defamation.”
“Numerous pieces of legislation have criminalised certain conducts, which include cyberbullying or trolling. Arguably, the legislation has not directly criminalised cyberbullying or trolling, and the specific circumstances will need to be considered to determine whether a crime has been committed,” he says.
“The law often must play catch-up because we could not have foreseen that we would be communicating in the way that we do now. Even ten years ago. Many people are being fired as a result of what they put on social media. There are a lot of laws and it’s a big hit or miss in how they are applied, but they do exist,” says Sadlier.
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