The accessibility of social media makes it the perfect tool to be used for businesses and individuals alike when wanting to communicate a message to a large audience. Applications like Facebook even allow businesses to target specific audiences for the purposes of advertising. This function is available on a platform like Facebook because Facebook stores your personal data and makes it possible for companies or individuals to target those who they believe their product or service will appeal to most.
One significant piece of information that applications such as Facebook and Instagram store are the age of a user. This is one of the first questions that a user has to answer when creating an online profile.
This brings about a question of accountability for social media platforms. Surely a minor should not be able to easily access the same content that adult users can see? For example, programmes that are viewed on television come with an age restriction which is determined by a statutory body in South Africa, the Film and Publications Board. Likewise, radio stations warn listeners when any content that is inappropriate for young listeners is about to be aired. However, no such barriers are in place to protect young users on social media platforms.
The gravity of this problem was recently demonstrated when a minor in Johannesburg took Facebook Inc. to the Johannesburg High Court. Over a five day period, this minor received threats of extreme violence, including gang rape, on Instagram from an anonymous account. The content of the threats made it obvious that the person who was making them was someone known to the minor. She approached Facebook Inc in order to obtain the details of this user in order to get a protection order against them. However, Facebook Inc. would not provide the minor with the user’s details.
When a user receives threatening content on a social media platform there is an option to block and report that user in order to prevent further abuse. However, social media platforms work within limitations and are unable to provide social media users with the permanency of relief that comes with a court order. If an abuser is blocked from one social media platform, he or she may just create a new account or take their harassment to a different platform. The Protection of Harassment Act provides social media users with a measure of protection. A harassment order may be obtained in order to prevent continued abuse on any social media platform. With the use of a harassment order or an interdict, an abuser can be prevented in totality from any sort of further online abuse under threat of arrest for contempt of court.
Another piece of legislation that will offer a higher level of protection is the Cybercrimes and Cybersecurity Bill. This Bill was developed to provide protection to social media users by criminalizing the distribution of data messages that are harmful. The definition of data messages in the Act is wide enough to cover any data that is generated, sent, received or stored by electronic means where any output of data is in an intelligible form. Therefore, messages sent off Instagram or Facebook would qualify as “data messages” in terms of this Bill and accordingly attract protection, once this Bill is enacted.
Unfortunately, neither of these pieces of legislation are aimed directly at the protection of minors. On 2 September 2020, in the United Kingdom, a piece of legislation called the Age Appropriate Design Code will be enacted under the current Data Protection Act. The Age Appropriate Design Code is aimed at combating the type of abuse this Johannesburg minor suffered at the hands of the online perpetrator on Instagram. This piece of legislation adds a higher standard of data protection and processing than that previously held, for minors specifically. This code is formatted with 15 standards which provide a framework protecting minors on social media.
It is a pillar of our Constitution that the best interest of the child standard is of paramount importance. Hopefully, with the best interests of the child standard in mind, South Africa will soon begin the process of enacting legislation in accordance with this newly established International standard and follow the lead of the UK.
Written by Natercia dos Santos Niz- Candidate Attorney
Overseen by Verlie Oosthuizen- Partner