Social media and the law

JOHN HARVEY

The importance of activism campaigns on social media has come to supersede concerns over defamation for students at the University of Cape Town (UCT).

That is the view of prominent social justice activists at the university, including Humanities Students’ Council secretary Priyanka Naidoo, one of the organisers of this week’s #UCTSpeaksBack campaign, and Rhodes Must Fall member, Simon Rakei.

UCT private law lecturer Professor Helen Scott, who has written extensively on aspersions cast on social networks, has also suggested social media protocols were now being applied to “real-life” situations, and both the law and society were unclear as how to proceed when it came to defamation.

The defamation issue has been dominant in the public discourse following the publication of the #RUReferenceList at Rhodes University last month. The list, which was released on social media, named 11 people alleged to have raped students at the Grahamstown university.

A wave of protest demanding university management structures address sexual violence followed at campuses around the country, resulting in the formation of the Chaper 2.12 movement which expanded from Rhodes and Stellenbosch universities to UCT.

In the wake of the protests, concerns were raised about whether students had gone too far in naming the alleged perpetrators, as in the eyes of the law they were innocent until proved guilty, and such action could be construed as defamatory.

However, this week activists revealed that the prevailing attitude among UCT students was that while they understood people could be the targets of vendetta attacks and smear campaigns, they were more concerned with tackling broader social justice issues than defamation claims that might result.

“Essentially, social justice issues are also not concerned with respectability politics. Mobilisation is purposefully done to disrupt the system which people are complacent with. I think the most important thing about the #RUReferenceList was that it valued the word of the survivor over society,” Ms Naidoo said.

“Survivors have often been told not to report their perpetrators as it would ruin their lives, which disregards the burden that they have to carry with them.

This also speaks to the justice system in South Africa where the conviction rate for perpetrators of sexual violence is shockingly low.

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We often also talk about rape or sexual violence as isolated incidents when actually we live in a society where rape culture is allowed to flourish.

“For example, Facebook actually removed posts about #RapeAtAzania as it violated ‘community standards’. There were also cases of students who had named their rapists on Facebook and these posts were also removed and some accounts even banned for 24 hours.”

She said while it could be true that some people were using these platforms as tools to make defamatory remarks, she believed a lot of people in the UCT community were well aware of the sensitive nature of social justice issues and would never exploit someone else’s pain.

“We are often cautioned as to what we put out on social media because of the possible legal consequences. However, this is also a silencing tactic that plays into rape culture and contributes to the stigma surrounding sexual violence.”

The week-long #UCTSpeaksBack campaign is organised by the group UCT Survivors and aims to “speak back against an institutional culture that creates an environment where sexual violence is allowed to flourish unchecked”. Yesterday, Wednesday May 11,\[chantel.erfort\] (SUBS: WED) the activists held an open forum where survivors and supporters could raise concerns about the lack of institutional care for survivors.

Mr Rakei said the sentiment that students placed the importance of a cause above concerns over defamation was correct, presuming that students weighed up what was important.

“However, personally the law isn’t a moral compass, so to speak, therefore for the most part I think activists are very sceptical about the law as a source of justice or what that actually is and should look like,” he said.

“Defamatory laws necessarily are a result of an already flawed legal system. If the law is there to protect, we must ask who those laws were made to protect and why, and we must remember that the legal system was never designed with the intention of protecting everyone.”

In March, UCT undergraduate student Busi Mkhumbuzi got into hot water after being accused of making racist and defamotory comments about philosophy lecturer Professor David Benatar. She accused him of being “ablist, racist and sexist” and claimed he had prevented her from writing her final exams last year following a bout of mental stress.

Professor Benatar subsequently laid a complaint of defamation.

Ms Mkhumbuzi declined to comment.

Professor Scott said what was apparent that even in cases where people had been defamed on social media, it would be very difficult for them to clear their names.

“There is profound frustration on university campuses. You have a situation where the complaint being made regarding the existence of rape culture is far bigger than just the 11 cases, at Rhodes University” she said.

“At the moment, our criminal justice system is not equipped to deal with the scale of the problem.But it is very difficult for the courts to endorse the protesters’ actions because of the mechanisms that are already in place. The truth is that if the people named on the (#RUReferenceList) chose to sue their accusers, they would probably have a strong case. However, they would be unlikely to as they would simply want this issue to go away given the attention it had already received on social media.

Professor Scott suggested South Africa might also want to investigate the possibility of altering its media laws.

“The rules on defamation date back to the beginning of mass media. With social media, you are no longer just dealing with professional journalists who understand media laws and ethics. Now everyone’s a journalist, but many people do not understand the consequences of their words. So that will have to be looked at. Right now we just don’t have good answers.”

UCT spokesperson Azwi Mufamadi said: “Although there has not been any cases where students complain of online bullying or harassment, such cases would go through Discrimination and Harassment Office (DISCHO).

“The University of Cape Town (UCT) holds its students to the Rules on Conduct for Students, which states: ‘We undertake collectively and individually to oppose and take steps to prevent racial, gender or other forms of unfair discrimination, harassment, violence or abuse’.

“We encourage our students to be socially active and responsive to the issues in our society and recognise the important role that social media can play as a platform for this activism.”