Written by Natasha du Preez & Nadine Roesch-Prinsloo

09 February 2024.

Are There Laws in South Africa to Prevent Cyberbullying for Children?

The number of children using mobile devices, online platforms, and the internet has been increasing alarmingly over the past few years, exposing our children to the dangers of the ever-present cybersphere. One of the dangers parents need to be on the lookout for is cyberbullying, which must be understood, evaluated, and addressed if we have any hope of safeguarding our children against bullies online.

The regulation and criminalisation of cybercrimes is relatively new, with the Cybercrimes Act recently taking effect in part on 1 December 2021, which left internet trolls and bullies unchecked online for far too long. Predictably, the lawlessness of the cybersphere resulted in an increase in bad behaviour online, including bullying and other cybercrimes.

Understandably, parents are often apprehensive when it comes to allowing their minor children access to mobile phones, social media, or the internet in general for fear of exposing their minor children to the risks and dangers that await them online. The fact that parents may be uncertain of how to protect their children online and how to deal with cybercrimes when they do occur often exacerbates this feeling, begging the question: What are the rights and duties of parents to exercise parental control over their child’s mobile devices, and is there legal recourse available to parents against cyberbullying?

What Is Cyberbullying?

Cyberbullying is bullying that takes place within the cybersphere, and it is currently running rampant across the internet! Cyberbullying is one of the worst forms of bullying, as it can be inflicted on the victim almost constantly and over multiple online and social media platforms. The biggest concerns associated with cyberbullying are twofold:

  • Cyberbullying cannot be escaped. It takes place in the cybersphere, which means that bullying can continue to affect a child on a near-constant basis and across multiple platforms like Facebook, WhatsApp, iMessage, Instagram, etc. The harm inflicted, therefore tends to be unrelenting and ongoing, as children always have their mobile devices on hand.
  • Cyberbullying is also highly public, and the result can be long-lasting. Due to the nature of online platforms, anyone can participate in online bullying, and the defamatory content is free for all to view, with the contents forever etched into the fabric of the victim’s and perpetrator’s digital footprint.

What Are Examples Of Cyberbullying?

Cyberbullying can take on various forms, including but not limited to:

  • Publishing social media content or sending messages that incite or promote violence towards another person
  • Publishing social media content or sending messages that incite or promote damage to another person’s property.
  • Publishing content that qualifies as hate speech.
  • Hacking into a person’s devices to intentionally disrupt their functioning or corrupt their data.
  • Disclosing secrets or spreading false rumours about a person online.
  • Stealing someone’s identity and impersonating them on social media platforms either to engage in criminal activities or to post defamatory content that may harm their reputation
  • Taking nude pictures of someone without their knowledge or consent.
  • Posting and distributing nude images or private images of a person on social media platforms without their consent.
  • Harassing someone on social media platforms or messaging forums.
  • Stalking someone online.
  • Posting or distributing someone else’s personal details on social media and messaging forums, such as their full names, addresses, and phone numbers – also known as doxxing.

Is Cyberbullying A Crime?

With the promulgation of the Cybercrimes Act 19 of 2020 (hereinafter “the Act”), cybercrimes such as cyberbullying have been criminalised in South African law, with specialised cybercrime units having been established in the South African Police Service (SAPS) to investigate and prosecute such crimes. A person found guilty of an offence in terms of Sections 14, 15, or 16 of the Act can be liable for a fine or imprisonment not exceeding three months on conviction. According to Sections 14 to 16 of the Act, the following criminal recourses can be sought depending on the perpetrator’s age:

  • If the perpetrator is older than 10 but younger than 18, they can be declared criminally liable. Parents can, therefore, institute a criminal charge at the SAPS on behalf of their child, for cybercrimes, such as hate speech, harassment, or “revenge porn,”  against the perpetrator.
  • If the perpetrator is under the age of 10 and cannot be declared criminally liable, parents can institute a criminal charge at the SAPS against the parents of the perpetrator.

What Civil Resources Are Available To Victims Of Cyberbullying?

According to Sections 14 to 16 of the Act, civil recourses that can be utilised in the event of cyberbullying include:

  • Parents can claim damages: The parents of a child who has suffered damages as a result of defamatory publications by a cyberbully can institute a civil suit for damages on behalf of their child for injury to personality or infringement of the child’s dignity with actio iniuriarum or a civil suit for damages for monetary losses with actio legis aquilliae.
  • The victim can apply for a protection order: A child who is being cyberbullied may apply for a protection order against the perpetrator. Section 2(4) of the Protection from Harassment Act 17 of 2011 allows a minor child to apply for a protection order without parental assistance.
  • The victim’s parents can apply for a Mandatory Interdict on behalf of their child: When no other recourse is available, the parents of a child who has been cyberbullied can institute an application for a mandatory interdict on behalf of their child, which mandates the cyberbully to remove or block any harmful or threatening content on all platforms where it was posted and refrain from such conduct in the future.
  • The victim’s parents can apply for a Prohibitory Interdict on behalf of their child: Alternatively, when no other recourse is available, the parents of the child who has been cyberbullied can institute an application for a prohibitory interdict on behalf of their child, which prohibits the cyberbully from continued harassment of the victim or continued engagement in any further acts of bullying, with immediate effect.

What Risks/Dangers Does The Internet Present To Minor Children?

Children are by far the most vulnerable group of internet users, as their limited life experience often results in a lack of sound risk awareness regarding the dangers associated with the internet. Unsupervised and unrestricted access to the internet has the potential to threaten a child’s safety and security, as they run the risk of being exposed to dangerous content, behaviour, or people online that, for example:

  • Explicit content
  • Pornographic content
  • Paedophilia
  • Online stalking
  • Coercion or duress
  • Cyberbullying
  • Defamation

Is It Legal For A Parent To Monitor Their Child’s Activities Online?

Most parents face internal conflict about supervising their children’s mobile phones and internet activities, which may lead to parents being utterly unaware of dangers online and failing to intervene when their child needs them most. Though monitoring your child’s mobile phone and online activity may seem like a fundamental breach of their right to privacy, parental supervision and intervention in a child’s online activities are considered one of the modern parents’ legal and ethical duties.

Section 14 of the Constitution of South Africa states that everyone has an inherent right to privacy and security. Further to the above, Section 28(2) of the Constitution clearly states that a minor child’s best interests are paramount in every matter that concerns the child. The law is, therefore, unambiguous in that the best interests of the minor child will at all times supersede their right to privacy, even where said privacy was limited or breached in an attempt to protect their best interests.

Should Parents Exercise Parental Control And Supervision Over Their Children’s Online Activities And Usage?

As mentioned before, parents have an immense responsibility and constitutional duty to protect and safeguard children in every way possible. Furthermore, parents are not only legally allowed to exercise parental control and supervision over their children’s online activities, but they are also encouraged to do so to protect their children from any potential harm or risk derived from such usage. Parents must be cognisant of their duty to care for and protect their child’s interests until that child is old enough to protect them on their own accord.

How Can Parents Exercise Parental Control Or Supervision Over Their Children’s Online Activities And Usage?

Parental control involves utilising a variety of mechanisms or tools to monitor, restrict, or tailor the content your child consumes online and ensure that their children are not accidentally exposed to harmful content on the internet. Parents can implement parental control in one or all of the following ways:

  • Educate your child: Inform children of the dangers associated with the internet and teach them how to use their mobile devices to browse the internet safely and productively.
  • Observe your child’s behaviour and internet usage: It is essential always to investigate any behavioural or social changes exhibited by your child, especially if they frequent social media platforms or other interactive websites on the internet, as cyberbullying is rampant online. Behavioural or demeanour changes in children should always be addressed with concern if they seemingly manifest without cause.
  • Pro-active monitoring: Monitor your child’s internet activities, social media sites, chatrooms, search history, and apps regularly to detect potentially unsafe or harmful people, content, or behaviour early on.
  • Computerised or software tools: A parent can use various tools and software programs to actively monitor their child’s mobile devices remotely if they do not want to “openly” monitor their devices or in an effort to prevent the child from developing means to hide their usage.

Parents must remain informed on the latest software, internet, and social media developments to implement parental control measures successfully.  Parents must also familiarise themselves with the internet’s potential dangers, risks, and threats regularly, as one cannot address a threat they do not know of. It is also inherently necessary for parents to keep abreast of any new and potentially harmful behaviour, content, or people online to ensure that any risks or threats to their child’s safety are swiftly identified and appropriately addressed.

What Is Defamation On Social Media, And Are There Legal Consequences?

Nowadays, the concept of “Naming and Shaming” on social media platforms has become massively popular, not only for online bullying but also for users to render social justice instead of following the correct legal procedures. When another person has aggrieved someone online, it is crucial that they address the matter correctly and on the proper forum, as taking the law into your own hands can lead to severe consequences.

For an in-depth evaluation of defamation and the legal consequences attached to it, kindly see our article “Consequences of Defamation Online and The Right to Be Forgotten: Think Twice Before Naming and Shaming On Social Media Platforms!”

Prevent and Take Legal Action Against Cyberbullying for Your Child’s Protection

It is essential to address and mitigate the profound emotional, psychological, financial, physical, and reputational harm that can flow from cyberbullying. Thus, parents must exercise parental control and take immediate action when their child experiences cyberbullying to uphold and promote their best interests.

Contact one of Burger Huyser Attorneys‘ specialist cybercrime attorneys if your child is a victim of cyberbullying and you wish to pursue any of the aforementioned legal recourses against the perpetrator.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE