FROM PRIVACY TO PROSECUTION… HOW SA COURTS ARE DEALING WITH REVENGE PORNOGRAPHY

In July 2014, in Philadelphia, a poetry collective, “Get Lit” performed at Brave New Voices. In one of their poems, the following line was delivered:

“Consent is sexy [no]…consent is a basic human right.”

The statement captures a principle that lies at the heart of our constitutional government. Consent is a cornerstone of dignity, privacy and bodily autonomy. In the current robust digital age, it is easy to see how frequently consent can be misunderstood or deliberately ignored. The fact that an individual may have consented to the taking of a nude photograph or the recording of a video does not imply consent to its distribution.

The non-consensual distribution of intimate images and/or videos, commonly referred to as “revenge pornography,” constitutes a serious infringement of the rights to dignity, privacy, and reputation. Revenge pornography is generally understood to mean the dissemination of sexually explicit photographs and/or videos of an individual without that individual’s consent.

Traditional legal remedies are often time-consuming, costly, and procedurally complex, thereby posing significant obstacles for victims seeking effective relief. By the time judicial relief is obtained, the harm to a victim’s reputation and psychological well-being may well be irreparable.

This article examines the extent to which South African law provides remedies to victims of revenge pornography, with particular emphasis on the Protection of Personal Information Act No. 4 of 2013 (“POPIA”) and evaluates whether POPIA offers more immediate and effective relief when used alongside existing civil and criminal remedies.

Existing Legal Remedies Prior To Specific Criminalisation

Prior to the express criminalisation of revenge pornography, victims were required to rely on existing common-law and statutory remedies. Criminal law remedies included charges of crimen injuria, criminal defamation, and extortion or intimidation, depending on the factual circumstances.

Civil law remedies included claims for damages based on defamation or an application for an interdict grounded in copyright infringement, particularly where the victim had taken the photograph or created the content personally.

In addition, the Protection from Harassment Act No. 17 of 2011 (“Harassment Act”) enables a victim to apply for a protection order. Such an order is accompanied by a suspended warrant of arrest, thereby providing a mechanism for immediate relief where harassment occurs through repeated electronic communications or online conduct.

The Films and Publications Amendment Act No. 11 of 2019

Criminalisation of Revenge Pornography

The Films and Publications Amendment Act No. 11 of 2019 (“FPAA”), which came into effect in March 2022, represents a significant legislative development in the protection of individuals against image and/or video-based abuse. Section 18F of the FPAA prohibits any person from exposing, through any medium, including the internet and social media, a private sexual photograph and/or video without the consent of the individual depicted and with the intention of causing that individual harm.

The Act expressly provides that the prohibition applies notwithstanding the fact that the individual may have consented to the original creation of the photograph and/or video. A photograph and/or video is deemed “private” if, having regard to the context, it was not intended to be seen by persons other than those to whom consent was given. A photograph or film is regarded as “sexual” if it depicts nudity, exposed genitalia, or content which a reasonable person would consider sexual in nature.

Penalties

In terms of section 24F of the FPAA, a person who knowingly distributes private sexual photographs and/or videos without consent and with the intention to cause harm is liable, upon conviction, to a fine not exceeding R150 000.00 or to imprisonment for a period not exceeding two years, or to both. Where the individual depicted is identifiable from the content, the penalty increases to a fine not exceeding R300 000.00 or imprisonment for a period not exceeding four years, or both.

While the criminalisation of revenge pornography constitutes a positive development, enforcement remains dependent on the capacity and efficiency of the criminal justice system, which may limit the immediacy of relief available to victims.

The Protection of Personal Information Act No. 4 of 2013

POPIA was enacted against the backdrop of international developments in data protection law, including the European Union Data Protection Directive 95/46/EC and its successor, the General Data Protection Regulation (EU) 2016/679 (“GDPR”). These instruments provide a useful comparative framework for interpreting POPIA in this context.

POPIA defines “personal information” as information relating to an identifiable, living natural person. Although photographs and videos are not expressly listed in the statutory definition, comparative jurisprudence supports the conclusion that images capable of identifying a person constitute personal information. In František Ryneš v Úřad pro ochranu osobních údajů (C-212/13), the Court of Justice of the European Union held that video footage enabling the identification of a person constitutes personal data.

“Processing” is defined broadly in POPIA to include the collection, storage, dissemination, distribution, or making available of personal information by any means. A “responsible party” is “a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and means for processing personal information”.

It follows that the non-consensual distribution of intimate images and/or videos via the internet or social media constitutes the processing of personal information, and that the perpetrator qualifies as a responsible party for purposes of POPIA. None of the statutory exemptions to POPIA are therefore applicable to the distribution of revenge pornography.

Complaints to the Information Regulator

Section 74(1) of POPIA entitles any person to lodge a complaint with the Information Regulator where their personal information has been processed unlawfully, unreasonably, or in a manner that infringes their right to privacy.

For purposes of investigation, the Regulator is vested with extensive powers equivalent to those of the High Court, including the power to summon witnesses, compel the production of documents, and enter and search premises occupied by a responsible party. In urgent cases, the Regulator may obtain a search warrant without prior notice where such notice would defeat the object of the investigation. For example, a perpetrator destroying evidence.

These powers are particularly relevant in cases of revenge pornography, where the rapid dissemination of content necessitates swift intervention in order to protect victims from reputational harm.

Enforcement Notices and Remedial Action

Following an investigation, the Regulator may refer the matter to the Enforcement Committee, which may recommend that an enforcement notice be issued. In terms of section 95 of POPIA, an enforcement notice may require a responsible party to take specific remedial steps, including but not limited to the cessation of unlawful processing.

In urgent cases, compliance may be required within as little as three days. A perpetrator who has distributed revenge pornography may therefore be compelled to remove the offending material from any website or social media platform. While POPIA does not prescribe specific timelines or fees for lodging complaints, this process is likely to be less costly than urgent High Court proceedings and may provide more immediate relief.

Administrative Fines and Criminal Liability

Any Failure to comply with an enforcement notice or obstruction of the Regulator constitutes an offence under POPIA, punishable by imprisonment of up to ten years or a fine. Alternatively, section 109 of POPIA permits the Regulator to impose an administrative fine in lieu of criminal prosecution.

Civil Damages Under POPIA

Section 99(1) of POPIA provides that a data subject may institute a civil action for damages against a responsible party for breach of the conditions for lawful processing of personal information. Notably, liability under this section arises irrespective of intent or negligence, thereby establishing a regime of strict liability.

This represents a significant departure from common-law principles, which ordinarily require proof of fault, and substantially enhances the position of victims of revenge pornography seeking compensation for non-patrimonial harm.

Cybercrimes Act No. 19 of 2020

The Cybercrimes Act No. 19 of 2020 provides an additional statutory remedy for victims of revenge pornography. The Act criminalises the unlawful and intentional disclosure of a data message containing an intimate image of a person who retains a reasonable expectation of privacy.

The Act further provides for interim relief, including protection orders prohibiting further disclosure and orders compelling electronic communications service providers to remove or restrict access to the offending content. Perpetrators may be punished by a fine or imprisonment for a period not exceeding three years.

A recent High Court judgment confirms that South African Courts are increasingly prepared to recognise the non-consensual distribution of intimate images as a grave violation of dignity, privacy and bodily integrity, arranging substantial civil recourse.

A default judgment application filed in the Gauteng Local Division in the case of KS v AM and Another 92021/28121) [2024] ZAGPJHC 1187; 2025 (4) SA 626(GJ) in relation to the creation of a false Facebook profile, the recording and dissemination of intimate videos without consent, and the publication and dissemination of those recordings to the Plaintiff's family, friends, colleagues, and employer.

The court accepted uncontested evidence that the first Defendant secretly recorded intimate sexual encounters without the Plaintiffs' knowledge or consent and had threatened to distribute the recordings unless the Plaintiffs continued their relationship. In order to publish explicit content and defamatory statements, both Defendants created and operated a fake social media profile impersonating the Plaintiff. The second Defendant further communicated defamation allegations directly to the Plaintiff’s colleagues and employers.

Mia J characterised the conduct as a serious aggravated infringement of the Plaintiffs’ constitutional rights and expressly recognised the publication of non-consensual intimate images as a form of violence, aligning South African civil jurisprudence with international human rights norms. Moreover, the court stressed that the digital nature of the infringement and its inability to control the further dissipation significantly exacerbated the harm.

The Court had regard to the Cyber Crimes Act, the Films and Publications Amendment Act and the Domestic Violence Act, noting that the criminalisation of such conduct reflects the seriousness with which the legislature views image abuse. Although the matter before the Honourable court was civil in nature, the statutory framework was relevant in assessing the gravity of the infringement and the quantum of the damages.

As part of its damage assessment, the court accepted expert psychological evidence that the Plaintiff had post-traumatic stress disorder, severe anxiety, depression, social withdrawal, and occupational harm, ultimately resulting in her resignation. It reiterated that damages for violations of dignity and privacy cannot be calculated mathematically and must be fair and reasonable.

The court awarded damages totalling R4.3 million, including general damages for invasion of privacy and dignity, defamation and non-consensual publication of intimate images as well as special damages for past and future medical treatment. Attorney's and client costs were granted.

This decision is significant for three reasons. First, it represents one of the highest civil awards in South Africa for revenge pornography, related harm, signalling a robust judicial response to digital gender-based violence. Secondly, it illustrates the court’s willingness to integrate constitutional values, statutory protections and international obligations when fashioning remedies for novel forms of online abuse. Thirdly, this development signals a broader alignment between domestic law and constitutional values, affirming that technological advancement does not diminish any fundamental right. 

Conclusion

In the digital environment, where content may be replicated and disseminated instantaneously and indefinitely, the consequences for victims are frequently enduring and difficult to reverse. While effectiveness of remedies under South African legislation ultimately depends on the capacity and responsiveness of the Information Regulator, the Enforcement Committee, and the criminal justice system, the existing legal framework reflects a clear and evolving recognition of the seriousness of image and/or video abuse.

South African legislation has the potential to function as a powerful and flexible tool in combating revenge pornography. By providing mechanisms for urgent intervention, enforcement notices, administrative fines, and strict civil liability. Our law offers victims meaningful alternatives to traditional civil and criminal remedies.

Ultimately, legal recourse available to victims is not solely about punishment or compensation. It is about reaffirming a foundational principle: consent does not end at the moment an image is created. Consent governs how personal and intimate information may be used, shared and stored. Our laws reinforce the simple truth that consent is a basic human right.

Kiara Bahadur

(Candidate Attorney)

26 February 2026

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