A settlement agreement made an order of court on Friday — in terms of which Meta Platforms, the owner of Instagram and WhatsApp, must release information about who was behind accounts to which graphic child pornography was posted — is a landmark development.
On Friday, the Digital Law Company (DLC), which had been litigating all week to protect the schoolchildren, said it was “the first time in South African legal history that a global tech giant has agreed, in writing and in court, to these kinds of terms”.
Michael Power, MD at public interest law firm Power Law Africa, agreed the settlement was hugely important. “That a big tech company consented to the jurisdiction of a South African court is an important legal development,” he said.
The content that was being uploaded was “shocking”, said the DLC’s Emma Sadleir in court papers. Alongside nude photos and sex videos of schoolchildren was “devastating” personal information — including allegations some of them were HIV-positive — that identified both individuals and schools, she said.
In terms of the settlement agreement, Meta and WhatsApp must, to the extent this is “technically feasible”, also remove the offensive profiles and channels, which were listed in the order. There were many of them, and there are deadlines for their removal.
Perhaps the most important part of the settlement agreement was the portion that sets up what Sadleir called a “hotline” — a mechanism whereby, if similar content emerges in the next two years, the DLC will be able to report it directly to Meta and WhatsApp’s lawyers. Meta and WhatsApp would then review the content and take action “as soon as practicable, but not later than 48 hours” after having been informed of it.
The agreement was the outcome of a week of intense litigation and seemingly equally fierce settlement negotiations. On Monday night the DLC brought an urgent application and obtained a court order. On Wednesday the DLC applied to court to hold Meta and one of its officials in contempt of court. By Friday there was an agreement.
Quoting Nelson Mandela, the DLC’s counsel, Ben Winks, told the court on Friday that both sides agreed that “our children are our greatest treasure ... [and that] those [who] abuse them tear at the fabric of society”.
Monday’s order and Friday’s agreement are not identical. One difference is that Monday’s order required Meta to permanently disable the creators of the pornographic content from opening any new Instagram profiles or WhatsApp channels. There is no similar order in Friday’s agreement. This may be because complying with such an order is practically challenging.
Aldu Cornelissen, from market intelligence firm Murmur, said it was “almost impossible from the tech side” to prevent someone opening new Instagram or WhatsApp accounts. All that was required to open one was a phone number or e-mail address. Meta or WhatsApp could disable a phone number or e-mail address, but “unless you catch the physical person, he or she can buy a new phone that has not been through the Rica process or use a new e-mail address and start all over again”.
The internet is like a hydra — cut off one head and two more will appear. By the time a takedown request has been processed, the content has already been downloaded, duplicated and seeded across other platforms
— Kavisha Pillay, executive director of the Campaign on Digital Ethics
The “hotline” was a welcome development, said Kavisha Pillay, executive director of the Campaign on Digital Ethics. But she pointed out that 48 hours’ notice may not be fast enough “in the digital world, where harm spreads at the speed of a click”.
“The internet is like a hydra — cut off one head and two more will appear. By the time a takedown request has been processed, the content has already been downloaded, duplicated and seeded across other platforms. It’s everywhere, and it’s sitting on people’s devices,” she said.
The litigation also spotlighted a bigger issue. Pillay pointed out that laws now in place in South Africa were “insufficient to deal with the dangers these big tech companies pose”.
“Our legislators need to think about laws that will keep people safe on these platforms,” she said.
She added that the EU and the UK had enacted legislation that compelled big tech companies to put safety mechanisms in place. Legislation such as South Africa’s Cybercrimes Act was meant to assist in this regard, but it fell short because it didn’t take into account the platforms that put the content out there.
A potential gap in the law was highlighted in this case by a letter received by the DLC in response to the first letter of demand it sent to Meta Platforms. The lawyers of Facebook South Africa (FSA) wrote to the DLC saying it had sent its demand letter to the wrong address.
The address the DLC had used was “[FSA’s] address”, said Bowmans attorneys on behalf of FSA. But FSA was “the wrong entity for your request”, according to Bowmans. FSA was a “separate entity, independent and legally distinct from Meta”. The letter asked the DLC to direct all future correspondence to an address in California.
Power said the ability of domestic courts to hold international tech companies to account was a “global challenge” many countries were grappling with. In law, this often manifested as a question of jurisdiction. In particular, may a South African court hear and decide a case against a company that does not operate from here, which is not registered here, and which has no officials here, but which provides a service and potentially causes harm here?
Without consent to jurisdiction from the implicated tech company, the question was complex, he said. In South Africa, jurisdiction was generally made up of two elements — “subject-matter jurisdiction”, which asks whether a court can hear a particular type of case, such as one involving an application for an interdict, and “personal jurisdiction”, which asks whether the court has jurisdiction over the parties in the case.
Courts needed to consider what was reasonable and practical, as well as whether their orders could be enforced, said Power.
Subject-matter jurisdiction was often easier to establish. But with the emergence of large online platforms based abroad, the speed with which and the scale at which content can be disseminated on their platforms, and the limited safeguards in place to limit online harms, there was a need to develop the common law in relation to personal jurisdiction to ensure people in South Africa were protected in the online world and could seek redress in our courts.
There were also policy and legislative options, he said. Legislation could require tech companies to consent to the jurisdiction of South African courts if they wanted to offer their services here. It could also require them to report to the government on monitoring and enforcing community standards.
In addition, legislation could require platforms to strengthen their safety teams and increase their content-moderating capabilities, ensuring they were “well-versed in all of South Africa’s languages and cognisant of South Africa’s unique cultures and customs”.
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