The darker side of #MeToo: naming and shaming on social media

TALI FEINBERG

Whether the allegations are true or false, by naming him, she has potentially damaged his life and reputation without giving him the chance to respond. In an age of #MeToo, #AmINext and social media, this can happen to any teenager, young man, father, husband, or brother. And, while women have always faced the prospect of being “slut-shamed”, this is a relatively new phenomenon for men.

Speaking to the SA Jewish Report, the 16-year-old teen who wrote the tweets claimed that the events happened at the beginning of 2018 when she had just moved to Cape Town. She now resides in Johannesburg. She said that the climate of calling out gender-based violence encouraged her to name and shame on social media last week, “even though I had never really spoken about it before, even to my friends”.

Indeed, as the movement against gender-based violence swells in South Africa, “there has been a proliferation of social-media accounts posting anonymous accusations of sexual impropriety, assault, and rape”, says Emma Sadleir of the Digital Law Company. “In the age of #MeToo and #AmINext, digital vigilantism has a very important place in society, and can be very effective in giving a voice to the voiceless.”

She said that over the past week, her company had been inundated with calls from people whose lives had been ruined by these accounts – people who lost their jobs, received death threats, and lost major business contracts as a result of these posts. “We are living in a world of ‘guilty until proven innocent’ and as such, the reputational consequences can be tremendous and irreparable.

The teenage girl said that a lot of people were empathetic. Some asked her where the alleged perpetrator lived, or even if they could talk to his mother on her behalf. Others told her “they could not look at him the same way again”.

She said many young women said her actions had inspired them to share their stories. While her mother had encouraged her to go to the police at the time, she “didn’t have the energy to do so”, and felt that “getting bashed on social media” was a harsher punishment than laying charges.

Psychologist Dana Labe says that whether the male teen did it or not, these tweets would have been “like a bomb landing in his life”, and are destructive rather than constructive.

Though women are resorting to vigilantism because of failures in our justice system, social media should be the last resort, she says, not the first. The teen in question would have been in shock and would have felt a deep sense of shame. Psychologists are seeing a rise in teen suicide due to all kinds of naming and shaming and vulnerability on social media.

How do we stop our teens being named and shamed in the first place?

“The thing about digital vigilantism is that there is no way of making sure it doesn’t happen to you [in a malicious way]. Obviously, we need to teach children about consent, and to be hyper-vigilant in any sexual situation. There are even sexual consent apps – very controversial, but it reflects the times,” says Sadleir.

She emphasises that the audi alteram partem principle is a fundamental tenet of South African law. It basically means “listen to the other side” or “let the other side be heard as well”. It’s the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.

Largely because of this principle, “South African law prohibits the naming of an accused person in a sexual offence before they have been asked to plead. This principle ensures that they actually have a case to answer before their reputation is ruined. Any person or media outlet which repeats or republishes the allegations is responsible for the publication. We warn people against jumping on the digital vigilantism bandwagon unless they can show that what they are publishing is true.”

Sadleir explains that when the allegations are untrue, embellished, or unfounded, the person accused has a number of legal options available. If they know who is behind the account, they can sue for defamation, lay a criminal charge of crimen injuria (infringement of dignity), or obtain a protection order under the Protection from Harassment Act.

If they don’t know who is behind the account, the options are more limited. They can lay a charge of crimen injuria against the anonymous account, and request that police submit a law-enforcement request to Twitter to reveal the identity of the account holder. However, this hasn’t been very successful, in her experience.

“An alternative – sometimes more effective – is to respond reputationally. [They] can take to the social media accounts to respond factually to the allegations. Social media gives everyone a voice. They don’t need to rely on a sympathetic media to publish their version of events,” she says.

To defend a defamation case, a defendant needs to prove that what they said was true and in the public interest. While these anonymous posts might be in the public interest, “where the only factual basis for the allegations is a direct message from an anonymous person, it will be very difficult to show what they are saying is true”, says Sadleir.

Attorney and partner Verlie Oosthuizen at Shepstone and Wylie says that that this trend is the darker side of the #MeToo movement. “It can have devastating ramifications for all involved if allegations are being published about sexual offences that are untested by the legal system. Unfortunately, it can actually have an even more detrimental effect on the cause of upholding womens’ rights and fighting the scourge of gender-based violence,” she says.

“Social media ‘warriors’ should put time, effort, and resources into assisting and supporting victims at police stations, training sexual-offences prosecutors, or volunteering at homes for vulnerable children who might have been sexually abused,” she says.

“Naming and shaming doesn’t take the matter any further, and cases need to be reported to the police not to other members of the public who have no power to investigate or prosecute crimes. In instances where the allegations are false, the whole exercise is highly defamatory and could result in civil or criminal charges being brought against the accuser as well as destroying the reputation of the accused person.”

In her view it’s unacceptable to name and shame on social media unless the person has been convicted of the crime or held responsible by a court.

The SA Jewish Report reached out to the teenager accused of sexual harassment on Twitter, but he and his family chose not to comment.