In February, Nicole Fritz, the former executive director of the Helen Suzman Foundation (HSF), was granted a protection order by the Johannesburg Magistrates’ Court against an individual abusing her on social media platform X.

Since late 2021, the Department of Home Affairs and Home Affairs Minister Aaron Motsoaledi have faced litigation from HSF challenging the lawfulness of Motsoaledi’s decision to terminate Zimbabwean Exemption Permits (ZEPs).

Motsoaledi is persisting with his court battle to scrap the ZEP and has turned to the Constitutional Court to appeal against a Gauteng Division of the High Court in Pretoria judgment that found the process he used to end the programme was neither fair nor lawful.

The ZEP system was introduced in 2009 to regularise the status of Zimbabweans fleeing to South Africa for political or economic reasons. It allows permit holders to live, work and study in SA.

Fritz has been heavily attacked on social media because the HSF challenged the government on the ZEP.

The abuse and threats she received from one X user were particularly distressing, resulting in her taking him to court.

“While I’ve been a kind of central target, he’s also targeted other women. The threats were extensive and fairly regular — threats of being necklaced or real physical harm to me and my family,” Fritz said.

She asked Daily Maverick not to publish the individual’s name due to the attention it might garner him.

While the individual did not deny the threats in court, he argued that Fritz should have understood that he didn’t mean them and wouldn’t have acted on them.

“He said I should have understood that, particularly because Twitter/X had not censored him, they hadn’t taken down his tweets or his accounts, and therefore there was a sense in which what he was saying, and the threats he was issuing, and the harassment was okay,” she said.

Lack of regulatory mechanisms

Since Elon Musk acquired Twitter/X, any regulatory mechanisms, particularly in Africa, had been discarded, Fritz said.

“It’s frightening that people will get the sense, because they’re not being sanctioned or censored by X, particularly here in South Africa, that this kind of engagement, this type of intimidation, harassment is okay.”

Social media law expert Emma Sadleir said the X user’s argument that because the social media platform had not censored him his abuse was acceptable, was “totally wrong”.

“There’s a huge problem with illegal content, particularly on Twitter, but on all social media platforms. Twitter is the worst because when Elon Musk took over Twitter, he basically fired the whole moderation team,” she said.

Read more in Daily Maverick: X marks the spot where the fundamentals of democracy were put to the torch

Sadleir said it was clear to see the voyage into zero moderation with the content on the platform, including pornography and sexually explicit deepfakes of Taylor Swift.

“We do see them sometimes taking action. But there’s a lot, a lot, a lot of illegal content on Twitter. Now they have so-called community guidelines and they’re very badly enforced, if at all,” she said.

In the US, the Communications Decency Act essentially provides immunity for social media companies.

“They basically say, ‘Look, Twitter, Facebook, you’re not responsible for the content you’re hosting just because you provide the platform’, and it is very controversial,” Sadleir said.

“I’ve seen child sexual abuse, and child pornography on Twitter; just because it’s not taken down doesn’t mean it’s legal.”

SA law offers protection 

Sadleir explained that South Africa’s Protection from Harassment Act “allows … for somebody to get a protection order against somebody who is harassing them, threatening them, stalking them, in the real world or online.

“There’s even a mechanism actually to get a protection order against an anonymous person, which is fabulous. A lot of people call this law the cyberbullying law and I’ve even got teenage clients who’ve managed to get protection orders against people who are cyberbullying them.”

There is a threshold that must be met to obtain this.

“You have to show that there’s harm or a fear of harm. It can be mental, psychological, physical or financial harm,” Sadleir said.

The passing of the Cybercrimes Act in June 2021 has also been beneficial.

The Act criminalises a wide variety of cybercrimes, including crimes specifically associated with cyberbullying such as:

• Electronic messages or social media posts towards a person that incite or threaten that person with violence or damage to his/her property; and
• The disclosure of intimate images of an identifiable person without his/her consent or linking an identifiable person to such an image in the description of a data message. Intimate images refer to nude images, images of a person’s private parts (even if that person is wearing clothes), or even edited images where a person is identifiable.

“So if I send you a text message, or a voice note or a DM [direct message] tomorrow, and then I never see you again, it’s a criminal offence,” Sadleir said.

Obtaining a protection order

Sadleir said obtaining a protection order was relatively inexpensive and simple.

“If I had to go rush off to the high court and get an interdict, that’s a very expensive process. Whereas a protection order, you can literally go off to the magistrates’ court, fill in a form that they give you, and get issued an interim protection order,” she said.

“And then you all go back on the return day, and you argue why it should be made permanent and the other person (if they turn up), argues why it should not, and then if you get it, it’s valid for five years.”

Sadleir said each protection order is different, but it essentially means that if that person so much as sends you an SMS, again, they can be arrested.

“It has, in many instances, the effect of sort of a high court interdict, just you can do it for free. It’s a much more accessible piece of law than, for example, a defamation interdict, or suing for damages. You can even download the form from the internet and fill it in at home,” she said.

An important outcome

Fritz said the magistrate in her case was “fantastic” and made it clear to the individual that contravening the protection order would lead to him either facing a prison term of five years or a fine of R180,000.

“But it was more important because the social media platforms and I think particularly X, are just so negligent at this point, particularly under Musk’s leadership in ensuring that it is a space for robust speech, but not speech that actually traffics in hate, intimidation, threats and harassment,” Fritz said.

She said it was an important outcome as women, particularly women in the public eye or who assume public roles, were often subjected to vicious intimidation and harassment on social media.

“For a lot of women in similar situations, it’s not clear what tools they might have available to them and what they can do to try and protect them; and whilst it’s imperfect, I do think it’s important that there be greater public awareness of being able to apply for this type of protective order,” she said. DM