High Court Awards Landmark R4.3 Million in Revenge Porn Case
In a watershed judgment that’s giving social media abusers a very expensive wake-up notification, the Gauteng Local Division of the High Court has delivered an unmistakable message: revenge is not just best served cold – it comes with a hefty bill, legal costs, and compound interest.
In KS v AM and SHM (2021/28121) [2024] ZAGHC, Justice Mia J sent digital privacy violators scrambling to update their “terms and conditions” of post-relationship conduct. The R4.3 million award to the plaintiff serves as a reminder that the “upload” button can lead straight to a “financial download” of significant proportions.
The judgment reads like a masterclass in “How Not to Handle Your Ex on Social Media 101,” addressing everything from fake profiles to non-consensual intimate recordings. The defendants, whose defences were struck out (legally speaking, they did not have enough storage space for their excuses), discovered that sometimes the most expensive clicks are not on online shopping sites.
Drawing inspiration from the English case FGX v Gaunt [2023] EWHC 419 KB, Justice Mia J’s ruling proves that when it comes to privacy violations, South African courts can “share” and “like” international precedents while creating their own viral content in damages awards.
The judgment weaves together the Criminal Law Amendment Act 32 of 2007, the Cybercrimes Act 19 of 2020, and the Films and Publications Amendment Act 11 of 2019 into what could be called the ultimate “privacy protection playlist.” It is clear that in the social media age, the courts have mastered the art of making perpetrators “pay per view.”
Mia J also referred to the following cases:
M.R v Mokgethi N.O and Another (393/2015) [2024] ZANWHC 37 which was cited for the important principle that awards for damages cannot be made with mathematical precision and that no two matters are the same. This provides essential guidance on how courts should approach quantum in cases involving unliquidated damages for privacy violations.
EFF and Others v Manuel (711/2019) [2020] ZASCA 172 was referenced to establish that claims for unliquidated damages inherently involve determining an amount that is just and reasonable in light of various imponderable and incommensurable factors.
This landmark ruling confirms that your ex’s intimate images are not your personal NFTs, and South African courts have zero interest in subscribing to digital revenge schemes. As Justice Mia J demonstrates, sometimes the most effective way to handle digital violations is with some old-fashioned judicial “influence” – the kind that leaves a lasting impression on both precedent books and bank accounts.
From Romance to Revenge: The Background to KS v AM and SHM
The relationship between the plaintiff and first defendant began in August 2014, characterised initially by what appeared to be genuine romantic intentions. The first defendant presented himself as unmarried, even proposing marriage to the plaintiff in December 2014, which she accepted. However, the facade crumbled in January 2015 when the second defendant – the first defendant’s actual wife – approached the plaintiff to reveal the truth about her husband’s marital status.
Upon discovering the deception, the plaintiff immediately terminated the relationship. However, this decisive action marked the beginning of a pattern of harassment. The first defendant persisted in appearing at her workplace and sending unwanted communications, compelling the plaintiff to seek legal intervention through an attorney’s letter requesting cessation of all contact.
The situation escalated dramatically when the first defendant responded to the attorney’s letter with threats to distribute intimate recordings he had made without the plaintiff’s knowledge or consent. These were not idle threats – he proceeded to create a fake Facebook profile in August 2015, using it as a platform to distribute intimate images and recordings while simultaneously attempting to blackmail the plaintiff into continuing their relationship.
The second defendant’s involvement extended beyond the initial revelation of her husband’s infidelity. She actively participated in the campaign against the plaintiff, making direct communications to the plaintiff’s colleagues and employer that were calculated to cause professional harm and personal humiliation. This included explicit attempts to damage the plaintiff’s professional reputation through communications with her workplace receptionist and senior colleagues.
The severity of the situation necessitated the plaintiff obtaining a protection order against the first defendant. However, the first defendant’s refusal to surrender devices containing the intimate recordings led to further legal proceedings, culminating in an appeal in the Magistrates Court. This protracted legal battle underscores the challenges victims face in regaining control over their private content, even with court intervention.
The psychological impact on the plaintiff was profound and well-documented through expert testimony. She experienced severe trauma leading to Post-Traumatic Stress Disorder (PTSD), requiring ongoing psychological intervention. The harassment and public exposure forced her to resign from her position, where she had been working on major coal-fired power-producing plant projects, representing not just an emotional but also a significant financial setback.
How the Courts View Non-Consensual Intimate Image Sharing
The South African judiciary has taken a robust stance against non-consensual intimate image sharing, recognising it as a form of violence that demands comprehensive legal intervention. This recognition aligns with international perspectives, particularly the United Nations Special Rapporteur’s position that such acts violate fundamental rights to privacy, dignity, and the right to live free from violence.
South African legislative framework demonstrates Parliament’s commitment to addressing this issue through multiple avenues. The Domestic Violence Act 116 of 1998 preamble explicitly acknowledges that domestic violence manifests in various forms and can occur across a spectrum of domestic relationships. This recognition is particularly significant in the context of intimate image abuse, where relationship dynamics often complicate the violation.
The courts’ interpretation of these violations is further strengthened by South Africa’s international obligations, including commitments under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women. This international framework provides a broader context for understanding the gravity of such violations and the necessity for meaningful remedies.
The judgment’s analysis of Facebook’s terms of service and user policy adds an important dimension to understanding the scope of the violation. The court recognised that creating fake profiles and using them for harassment violates platform policies, but more significantly, acknowledged the potentially permanent nature of digital content. Even when deleted, the court noted that backup copies might persist, and content shared publicly could have been downloaded or screen-recorded, creating an enduring violation.
In determining appropriate damages, the court emphasised that while criminal legislation provides context for the seriousness of the conduct, civil remedies require a different approach. The judgment acknowledges that quantifying damages for such violations cannot be achieved with mathematical precision, requiring instead a careful consideration of various factors including the breach of trust, the extent of distribution, and the ongoing nature of the harm.
The court’s approach to interconnected claims – treating each instance of defamation and privacy violation as separate but related harms – demonstrates a sophisticated understanding of how digital violations can compound and escalate. This nuanced approach recognises that each act of sharing or threatening to share intimate content represents a distinct violation of the victim’s dignity and privacy.
The judgment sets a significant precedent in establishing that civil remedies for such violations must be substantial enough to reflect both the immediate and long-term impacts on victims. By awarding separate damages for each distinct violation, the court emphasises that each act of sharing or threatening to share intimate content represents a separate infringement requiring its own remedy.
The Far-Reaching Impact of Digital Violence and Privacy Violations
Digital violence penetrates every aspect of a victim’s life, as evidenced by the comprehensive psychological evaluation presented in this case. The plaintiff’s experience exemplifies how online violations transcend the digital realm, manifesting in severe physical and psychological consequences. The development of alopecia, exacerbation of pre-existing heart conditions, and kidney complications from PTSD medication demonstrate the profound physiological impact of digital trauma.
The professional ramifications were equally devastating. The plaintiff, despite her impressive academic achievements including doctoral-level LLD/PhD studies and successful board examinations, found herself unable to maintain her position working on major industrial projects. The forced resignation represents not just an immediate financial loss but a disruption of career trajectory that may have long-term implications for professional development and earning potential.
Social isolation emerged as a significant consequence, with the plaintiff withdrawing from social interactions due to embarrassment and psychological dysfunction. The psychologist’s report highlighted how the violation created profound trust issues, making it difficult for the plaintiff to establish or maintain meaningful relationships. This social impact extends beyond the plaintiff to affect her family, who also experienced fear and anxiety about their safety.
The judgment acknowledges the unique challenges of digital content persistence. Unlike traditional forms of privacy violation, digital content can be infinitely replicated and distributed, creating an enduring sense of vulnerability. The court recognised that even after content removal, the uncertainty about potential downloads or recordings creates an ongoing source of anxiety and distress.
The case illuminates how digital violence can weaponize professional networks and social connections. The strategic targeting of colleagues and supervisors demonstrates how perpetrators can exploit professional relationships to amplify the harm. This intersection of personal and professional spheres creates a particularly toxic form of harassment that can permanently alter career trajectories and professional reputations.
The psychological impact extends to fundamental aspects of daily living, with the plaintiff developing significant trust issues that impair her ability to function normally in social and work settings. This erosion of trust represents a profound impact on human connection and social functioning, affecting not just current relationships but the capacity to form new ones.
The court’s recognition of these far-reaching impacts sets an important precedent for understanding digital violence not as isolated incidents but as comprehensive attacks on a person’s entire life ecosystem. This understanding informed the substantial damages awarded, acknowledging that the ripple effects of such violations extend far beyond the immediate emotional distress to impact every aspect of a victim’s personal and professional life.
What This Judgment Means for Future Cases in South Africa
This landmark judgment establishes crucial precedents for civil remedies in digital violence cases, marking a shift in how South African courts approach quantifying damages for privacy violations in the digital age. The court’s willingness to award substantial damages recognises that traditional approaches to quantifying harm must evolve to address the unique characteristics of digital violations.
The judgment’s comprehensive analysis of various legislative frameworks creates a robust foundation for future litigation. By drawing together the Cybercrimes Act, Films and Publications Amendment Act, and Domestic Violence Act, the court provides a roadmap for how different pieces of legislation can work in concert to provide comprehensive protection for victims.
The court’s approach to separating damages for distinct violations, even when part of a connected series of events, provides valuable guidance for structuring future claims. This granular approach to damages assessment acknowledges that each instance of privacy violation, defamation, or harassment carries its own weight and deserves individual consideration in determining appropriate compensation.
The judgment sets a significant benchmark for expert evidence in digital violence cases. The court’s detailed consideration of psychological evidence and its acceptance of projected future treatment costs provides guidance on how to structure evidence in similar cases. This framework helps establish standards for proving both immediate and long-term damages in digital violence cases.
The court’s consideration of technological aspects, including social media platform policies and the persistent nature of digital content, provides a template for addressing technical evidence in future cases. This demonstrates how courts can engage with digital technologies’ complexities while maintaining focus on fundamental legal principles of privacy and dignity.
The judgment’s international perspective, drawing on United Nations frameworks and comparative law, positions South African jurisprudence within the global context of combating digital violence. This international alignment strengthens the precedential value of the judgment and provides a foundation for future courts to consider global best practices in addressing digital privacy violations.
The default judgment context of this case does not diminish its significance. Instead, it demonstrates the courts’ willingness to grant substantial damages even in unopposed matters, provided the evidence adequately proves the extent of harm. This aspect may encourage future victims to pursue civil remedies, knowing that strong evidence can support significant awards even without opposition.
The ordered costs on attorney and client scale further emphasises the court’s view of the severity of these violations and provides an additional deterrent against similar conduct. This costs order sets a precedent for future cases, suggesting that privacy violations of this nature warrant punitive costs orders.
Questions and Answers
What types of damages were awarded in this case and how were they quantified? The court awarded both general and special damages. General damages totalling R3.5 million were awarded for various claims including privacy violations, dignity infringement, and defamation. Special damages of R300,000 were awarded specifically for past medical expenses (R50,000) and future medical treatment (R250,000).
How did the court approach the jurisdiction question for online defamation? The court accepted jurisdiction as the harm occurred within Ekhurhuleni, Germiston, where the plaintiff resides and where the infringement came to her attention. The court noted that although the infringement occurred online, the plaintiff’s colleagues and seniors who received the communications were based within the court’s jurisdiction.
What was the significance of the defendants’ defence being struck out? The court proceeded with the default judgment application as it was satisfied that despite the struck-out defence, proper service had been effected on the attorney of record, and an attempt was made to serve the first defendant personally who refused to accept service.
How did the court interpret the intersection between criminal and civil law regarding revenge porn? While acknowledging that various legislation criminalises revenge porn, the court noted that civil matters require a different standard of proof. However, the criminal legislation’s existence reflected the seriousness of the infringement and the State’s commitment to protecting privacy and dignity rights.
What role did international law play in the court’s reasoning? The court referenced the United Nations Special Rapporteur’s recognition of revenge porn as a violation of rights to privacy and dignity, and considered South Africa’s obligations under international conventions, particularly regarding the elimination of discrimination against women.
How did the court approach the quantification of future medical expenses? The court accepted R250,000 for future medical expenses based on a conservative calculation of approximately R1,000-R1,500 per session over three to five years, supported by expert psychological evidence.
What was the relevance of Facebook’s terms of service to the judgment? The court considered Facebook’s terms of service regarding fake profiles and harassment, noting that even when content is deleted, backup copies may remain, and content published with public settings could have been accessed and downloaded by anyone.
How did the court justify separate awards for different instances of defamation? The court treated each instance of defamation as a separate infringement, awarding damages for each occurrence based on the principle that each instance represented a distinct harm to the plaintiff’s reputation.
What was the significance of the protection order in the civil case? The protection order demonstrated the ongoing nature of the harassment and the first defendant’s refusal to comply with court orders, particularly regarding surrendering devices containing the intimate recordings.
How did the court view the second defendant’s liability? The court held the second defendant separately liable for specific communications she made to the plaintiff’s colleagues and employer, while holding both defendants jointly and severally liable for other aspects of the harm.
What weight did the court give to expert psychological evidence? The court relied heavily on the independent psychologist’s report, which detailed standardised tests and interviews, to establish both immediate and long-term impacts of the violations on the plaintiff’s mental health.
How did the court address the issue of continuing harm from digital content? The court acknowledged the unique nature of digital content persistence, noting that even after content removal, the uncertainty about potential downloads or recordings creates ongoing harm.
What was the basis for awarding attorney and client costs? The court considered the nature of the relief sought and granted attorney and client costs, viewing punitive costs as appropriate given the severity of the violations.
How did the court interpret the Domestic Violence Act in relation to digital violence? The court emphasised the Act’s preamble recognising various forms of domestic violence and the need to afford victims maximum protection, interpreting this to include digital forms of abuse.
What precedent does this case set for calculating damages in future digital violence cases? The case establishes that substantial damages can be awarded for digital violations, with separate quantification for distinct harms, and recognises both immediate and long-term impacts in calculating quantum.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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