Beware what you post online...
Social media has paved the way for a raft of legal action pitfalls
SOCIAL media has undoubtedly become the preferred means for the public to expose previously hidden ills of society.
Domestic violence was a taboo subject and took place behind closed doors. The perpetrators often escaped the long arm of the law, and the shame that the victims suffered remained concealed.
Domestic violence is unfortunately not decreasing and there have been the horrific stories of husbands and fathers killing entire families and then turning their guns on themselves.
Recently the images of victims of domestic violence have flashed across our social media feeds and spread virally.
The story of Babes Wodumo and her live Instagram video of the violence perpetrated against her by her boyfriend, Mandla “Mampintsha” Maphumulo, was the headline story of last week.
He retaliated by claiming that she had beaten him first, but the real-time posting of the Instagram video was an undeniably powerful statement against the scourge of domestic violence. Usually, the public are not privy to that kind of content.
However, it is important for the public to be aware that the mere sharing of a video of that nature on social media will not be enough to ensure that the perpetrator will be prosecuted and jailed.
The criminal justice system has strict procedural requirements that will need to be met in order to bring a person to book.
One of the biggest challenges in any type of domestic violence matter is that the victim may initially be willing to report the matter to the police, but then later may decide against testifying in court.
Without the testimony of the victim, particularly in instances where there are no other witnesses, it may be too difficult for prosecution to be successful.
In a criminal trial the prosecution will have to prove its case beyond a reasonable doubt and without the testimony of the key witness (the victim) this may be an insurmountable hurdle to overcome.
While the social media content depicting domestic violence may be used as evidence in any trial against an alleged perpetrator it will be important for the prosecution to bring expert witnesses who can testify to the fact that the video content was not tampered with or manufactured.
The documentary social media content will be used to corroborate the evidence of the victim – it cannot be used in place of the evidence of the victim, and it will need to be introduced to the court through the means of a witness who can attest to its authenticity.
Any person who has been accused of a crime has the right to cross examine their accuser. Often this is a very traumatic experience for the victim as cross examination is usually rigorous and is calculated to create doubt in the mind of the judge or magistrate hearing the matter.
Our criminal procedural system has not reached the stage where it will accept the veracity of social media content in the absence of witnesses who must testify in person.
In our view it is highly unlikely that this complex system of checks and balances will be abandoned in favour of the use of social media content to prosecute accused persons, no matter how heinous the crimes that they have committed.
A “trial by social media” is not the preferred approach anyway, because it can turn into a witch hunt fanned by the flames of societal outrage.
While it is understandable that the community becomes frustrated by the slow-moving criminal justice system, it is the prevailing method and has developed over hundreds of years in order to ensure that innocent people are not convicted and jailed for crimes that they did not commit.
There is no way of the community being able to ensure the content that is posted online is legitimate and it is important that the legal system and experts are engaged to try to establish the truth of the allegations made against an alleged perpetrator.
The phenomenon of posting domestic violence images on social media has served to highlight the sad reality of what is happening in our communities behind closed doors.
Awareness can lead to assistance for the victims and support for their families. It may also lead to perpetrators thinking twice before they lash out violently, or it may educate people that their behaviour is unacceptable.
The important point for the public to remember, though, is that the sharing of content in instances where it has been manipulated or is false may open them up to claims of defamation or to breach of privacy claims, so anyone posting such content should be well aware of the risks they are taking in posting it.
In our view it is not worth the risk of legal action when there are other methods of assisting a victim or raising awareness about domestic violence.
Oosthuizen is Head of Social Media Law and Partner in Employment Law at Shepstone and Wylie