Ivory tower: Facebook’s Mark Zuckerberg leads a social media organisation that is remote and unresponsive to serious problems encountered by some of its users. Picture: REUTERS
Ivory tower: Facebook’s Mark Zuckerberg leads a social media organisation that is remote and unresponsive to serious problems encountered by some of its users. Picture: REUTERS

Have you ever been trolled on Facebook? Have you ever been subjected to vile abuse sent to you over the social media platform? Have you ever tried to do anything about it?

The chances are that if you had, you didn’t get very far, because Facebook trolling is extraordinarily tricky to fight, for a number of reasons.

To begin with, Facebook is notoriously insular as an organisation and despite the nature of its core business — social networking — it tends not to engage or comment publicly, not even through or to the media.

(Facebook did not respond to any questions sent to it for the purposes of this piece, not even through a local law firm that acts for it.)

Second, those who engage in the act of sowing discord or posting inflammatory or extraneous statements over the internet (trolling) often lurk behind an alias that is difficult, though not impossible, to trace.

Third, trolling is not defined as a crime in the South African statute book, which makes it difficult to challenge.

Last, if you want Facebook to remove a post on the grounds that it is defamatory, it must be on the back of a court order sought from a court in California in the US, where Facebook has its headquarters.

Facebook has divided its monolithic entity into two areas: one administers all users in North America and automatically binds them into an agreement with Facebook Inc (in North America) from the moment they open their Facebook account. Users elsewhere in the world are administered by Facebook Ireland Ltd in Dublin.

Regardless of which area you are contracted to, the jurisdiction for disputes for all Facebook users reverts to the US. Whether you, as the aggrieved user, are sitting in Zimbabwe or Zurich, you must find a legal team in the US to take on your legal battle on your behalf.

So, if you have neither the time nor the financial resources to take this route, you will have to put up and shut up, as tens of thousands of aggrieved Facebook users have had to do for years. The same applies to users of other social media giants, such as Twitter.

To the credit of Facebook, it does respond to some requests and sometimes initiates action.

According to Dinesh Balliah, a lecturer at the University of Witwatersrand’s department of journalism and media studies and the person with responsibility for the social media accounts linked to the university’s Vuvuzela student newspaper, Vuvuzela has twice been forced by Facebook to remove what the platform regarded as abusive content.

One was a photo of a T-shirt that read "f**k white people" and the other was an image of a bare-breasted woman participating in a naked protest against domestic violence. On both accounts, the images were removed on demand.

Balliah is also the deputy public advocate at the Press Council and though she received nine complaints in 2016 related to Facebook content, neither she nor her peers at the council could do much about them as Facebook does not fall within their mandate.

In Britain, internet trolling and revenge porn were recently classified as violent crimes

To add to the injury, the rising number of trolling incidents in SA is rarely appreciated, because such cybercrimes are not specifically categorised in crime statistics.

"Sometimes you will find them sitting among the commercial crime stats, but unless you know specific cases, there is no way to trace the growth of them," says Dr Anthony Minnaar of the department of criminology and social justice at Unisa, and the country’s leading academic in the field.

However, in Britain, internet trolling and revenge porn were recently classified as violent crimes and between them contributed to a 24% rise in such crimes in 2015, according to figures released by the Office for National Statistics in October. The fact that they are now recognised as an offence makes the act of reporting them easier, which helps in both monitoring the offences and fighting them.

SA is about to introduce the Cybercrimes and Cybersecurity Bill in Parliament, which will be a first step in tackling the vulnerabilities and shortcomings of the cyberspace world.

Though the bill’s contents are being kept tightly under wraps for now, Business Day understands that while it tackles revenge porn, it will not criminalise trolling or deal with it in any meaningful way.

In the meantime, Facebook continues to maintain its steely silence on the matter — and perhaps for good reason — as one small hint that it is about to drop its guard could bring tens of millions of complaints its way.

However, its policies raise fundamental questions about the role that Facebook, as the publisher of wrongful posts, unwittingly plays in facilitating these crimes.

For the reasons described above, there is no case law to fall back on in SA, although there have been a few landmark cases elsewhere in the world.

Social media is everywhere and it is here to stay. But what will it take to rectify some of the wrongs in this feature of modern life?

In 2012, British woman Nicola Brookes was hounded by internet trolls when she sent a message of support to an X Factor contestant. In the weeks that followed, she was falsely portrayed as a paedophile and drug dealer by some users on Facebook. One online bully created a fake profile in her name from which lewd sexual messages were sent to young girls.

Brookes reported the matter to Facebook but received its standard automated response, which reads well but offers no protection or action. She took the matter to the police, but was told they could do nothing.

She then mounted a successful legal challenge against Facebook and forced it to reveal the identity of the trolls. Four months later, Lee Rimmel, a police officer, was arrested for trolling Brookes.

It was a landmark case and marked the first time that a British Facebook user had successfully forced the hand of the networking site.

A year later, a Facebook user in France set a precedent that could prove useful for SA’s 11.8-million users. In 2013, Facebook blocked the account of Frederic Durand-Baissas on the day he posted an 1866 painting by Gustave Courbet (The Origin of the World), which features a woman’s genitalia.

Picture: ISTOCK
Picture: ISTOCK

Facebook would not explain why it blocked his account, and he took a case against the social network. Initially, he was forced to file his court papers in California, but he challenged that order in a French court and won his right to have his case heard in Paris. Durand-Baissas’s legal team argued that the contract he entered into with Facebook when he opened his Facebook account fell under consumer law in France.

In so doing, they set a crucial precedent for any of France’s 30-million Facebook users who may wish to bring a case against Facebook in the future.

Such a challenge has yet to be brought in SA. It is understood that Webber Wentzel was successful in having a case against Twitter heard in a South African court, although the law firm has declined to provide any information on the case.

Social media is everywhere and it is here to stay. But what will it take to rectify some of the wrongs in this feature of modern life? Some suggest it is legislation that would extend to local protection — though it is understood the pending Cybercrime and Cybersecurity Bill will not provide for that.

Others argue that what is lacking is an acknowledgement on Facebook’s part that its might and power in governing the largest number of social media users often flies in the face of its aims and objectives as a social media networking site, although that too is unlikely.

Until some of these social media platforms are properly challenged on a legal basis, there is no compelling argument for them to change.

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