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The blonde mother from Schweizer-Reneke has been trending on social media after she allegedly posted an image of her genitals onto a Whatsapp group. The Whatsapp group is titled “Hokkie ouers” (Hockey parents).
Somebody apparently grabbed a screenshot of the genitals and the conversation that followed and distributed it.
According to the screenshot, the woman apologised and explained that the image was intended for her husband.
Hundreds of thousands of South Africans have made Margaret van Wyk jokes online since it surfaced.
And there were some sobering tweets:
So how right is Wynand Claassen? What does the law say?
To begin with, it seems to be on Margaret’s side.
She made it clear that she had no intention to send the image to more than one person. It was intended for her husband’s eyes only.
- Margaret’s position
If she had indeed sent the image of her genitals to the hockey group, the following factors must be taken into consideration:
- Margaret intended to send the message to her husband.
- Sexting between consenting adults is not illegal.
- Whatsapp messages are encrypted. Where Whatsapp users have installed the latest version of this application, their messages (including group messages) can only be read by those who send and those who receive the messages. The communication cannot be intercepted. Therefore, group members may have had the reasonable expectation that their messages would not leave the group.
- The position of whoever allegedly took the screenshot and shared it
This person would have been the catalyst who crossed the line between the measure of privacy that group users could expect and the free distribution of the image to internet users worldwide. The woman immediately apologised and qualified that the message was intended for her husband’s eyes only – it was intended for private use.
- The position of those who shared the screenshot:
Previous judgements in South African courts determined that those who share posts that infringe a reasonable expectation of privacy or defame, are just as liable as those who committed the original infringement or defamation.
- The position of those who commented negatively on the alleged incident
They will be liable for their comments if these comments were defamatory or amounted to crimen iniuria or harassment.
- Liable? How?
Those who have spread the screenshot and mocked the woman may be charged in civil and criminal courts, where they may be accused of harassment, defamation, criminal defamation and crimen iniuria.
Harassment is defined as the unreasonable behaviour by the respondent (wrongdoer) who causes harm (mental, psychological, physical or financial harm) or makes the complainant (victim) believe that harm may be caused by following , communicating with, watching, or bothering the complainant or sending letters, gifts, faxes, or emails to the complainant. Harassment includes sexual harassment. A victim of harassment may obtain a protection order against the wrongdoer.
Defamation occurs when the victim suffers and injury to his or her dignity, good name and reputation as a result of a wrongful act. The defamed party may sue the wrongdoer for damages.
Criminal defamation is defined as the unlawful and intentional publication of a matter concerning another, which tends to seriously injure his or her reputation. It is required that the defamatory statement must have come to the notice of someone other than the victim.
Crimen iniuria consists of the unlawful, intentional and serious violation of the dignity or privacy of another person. It must be clear that the victim is aware of the perpetrator’s offending behaviour, and the victim must feel degraded or humiliated by it. The third party need not be aware of the fact that he made the victim feel violated as described above.
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