Revenge porn — In legal first for SA, court hits couple with millions in civil damages over social media sex video

A Germiston woman has won a first-of-its-kind ruling in the Gauteng Division of the High Court in Johannesburg after she successfully sued a couple for distributing revenge porn about her on Facebook.

The court awarded her R3.5-million in damages.

The woman, who is not named in the judgment to further protect her from harm, sued for general and special damages after the defendants had created an imposter social media profile to distribute a recording of intimate images of her.

This is the first ruling of its kind for civil damages relating to revenge porn in South Africa.

The pornographic material was also distributed in communications by the cheating husband’s wife to various colleagues of the plaintiff and a senior colleague at the company where the plaintiff was employed. 

The plaintiff was in a romantic relationship with a man, named as the first defendant in the case, from approximately August 2014 to January 2015. He was, however, married, but did not tell her and even proposed to her. She accepted his proposal. But in January 2015, the man’s wife came to see her and shared that he was already married. The woman immediately ended the relationship.

The cheating husband, however, refused to stop seeing the woman and would wait for her at her workplace early in the mornings. She went to see a lawyer and sent him a letter to tell him to stop any communication with her.

He, however, continued sending WhatsApp messages. He then threatened to send videos he described as “porno videos” to the woman’s attorney. He threatened to take “three steps” for each step she took against him. This was followed by a threat to send a video he recorded of her engaged in sex with him to her family and friends. He directed her to a Facebook profile that he had created, saying he would invite everyone they knew and post the video he had recorded. He sent a video clip to her WhatsApp to ensure she knew what the content was. She was not aware that the first defendant had been recording intimate images and video of them while they were together. 

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The fake Facebook profile was created on 13 August 2015. The woman’s friends, family, and professional colleagues were invited to join this profile. The images and videos were posted on this fake Facebook profile. On 15 August 2015, the cheating husband threatened that he had published the explicit videos and would send them to everyone if the woman did not sleep with him. 

She was contacted by friends and family who had seen the content. It also came to the attention of people she did not even know and was available on the active fake Facebook account until the account was deactivated. The plaintiff deactivated the account when the posts came to her attention. 

She then sued the man for damages including for the infringement of her dignity and privacy by both the man and his wife as both posted on the Facebook account. She also sued for the operation of a false Facebook account where the couple posted two videos depicting the plaintiff in a state of undress and engaging in sexual conduct. The man had created the videos without his ex-girlfriend’s consent. 

“The [couple] intended this to come to the woman’s attention and to humiliate her, and she was severely traumatised as a result. She has experienced pain and suffering and has undergone medical treatment and will require treatment in the future due to the emotional trauma she has experienced. This claim is for R2,500,000.00 for general damages,” Judge Shanaaz Mia explained in her judgment.

Advocate Ben Winks led the women’s legal team, which included attorneys Tina Power, S’indile Khumalo, Claire Dehosse and Michael Power of Power & Associates Inc.

She also sued for defamatory statements published by the couple on Facebook that Mia said were “calculated to impute an immoral picture of the plaintiff to bring shame to her family and her professional life. The content describes the plaintiff as the person in the video, continuing that she gave the man her phone number at a filling station even though there was a baby on board sign” on his car. 

“The man’s wife wrote on Facebook: ‘[I]t’s sad that educated … from good homes can stoop to that level and not respect other women’s marriages or homes. Homewrecker??  You be the judge. All we have at the end of the day are our morals [and] our character, not our money or our professions or title  [sic] … to all who believe she is an honest and moral human being … here is a wakeup call’.”

The wife had sent a similar communication to a colleague of the woman at her previous workplace that ended with the sentence: “[T]he company should not employ women like [the plaintiff]”, and an email to her bosses describing her as a homewrecker.

Embarrassed and humiliated