The worrying rise of online GBV in Namibia
OPINION
Martha N.T. HasheelaThe internet has evolved, and social media and networking tools have progressively become an essential part of our lives.
Although this is seemingly advantageous, it also comes with its dangers and flaws.
One of the biggest challenges is that it is being used to perpetuate gender stereotypes and negative social norms and create vicious cycles in which inequalities are amplified and perpetuated through digital tools.
Technology-facilitated gender-based violence (TFGBV) includes any act of gender-based violence that is committed, assisted, aggravated and amplified in part or in full by the use of information and communication technologies (ICT) or digital media, including mobile phones, global positioning system (GPS) tracking devices, drones and non-internet-connected recording devices. But the most commonly used tool by perpetrators of TFGBV in evolving Namibia is mobile phones.
Moreover, evolving technologies, such as artificial intelligence (AI), may also give rise to new forms of violence, such as deepfakes.
TFGBV can be perpetrated in various contexts, including by intimate partners or ex-intimate partners, strangers and trolls.
The most common forms of TFGBV in Namibia are sextortion, cyberbullying, online harassment, online sexual harassment, image-based abuse (IBA) – creating sexual images depicting the victim using AI tools – revenge porn, impersonation and hacking.
Due to the rise in TFGBV cases in Namibia, it is prudent for the legislature, the judiciary, other stakeholders and the general public to be sensitised to the permanence and interrelation between offline and online GBV.
This is because TFGBV has the potential to escalate into life-threatening situations, mirroring the forms of offline GBV we are already familiar with, and it causes harm to victims’ mental and, at times, physical health.
Create awareness
In Namibia, like many other countries, it is our most vulnerable members of society, women and girls, and more recently even men and the boy child, who fall victim to TFGBV.
The most disheartening fact is that, due to the lack of knowledge on the subject, TFGBV is on the rise in Namibia, but we are not aware of this because victims are not acting against perpetrators. Which then leaves perpetrators believing that it is “okay” for them to commit TFGBV because they believe their right to freedom of expression is unlimited.
One of the most recent incidents occurred last year, when the perpetrator shared obscene images of the victim on social media platforms, and the victim took a bold decision to open a criminal case against the perpetrator.
The perpetrator was subsequently arrested and charged with contravening section 117 of the Communications Act, Act No. 8 of 2009 – initiating the transmission of images or other communications which are obscene, lewd, lascivious, filthy or indecent with intent to annoy, abuse, threaten or harass another person, and defamation of character.
As always, our Namibian society, due to a lack of knowledge on the subject, had different opinions on the issue. Some were of the view that the victim deserved it and the perpetrator was simply expressing themselves through social media platforms, whilst human rights advocates and sympathisers offered different views, arguing that the victim’s constitutional rights to privacy and dignity were violated.
Right to privacy
Article 13 of the Constitution states that, the privacy of one’s home, correspondences or communications shall not be interfered with, unless it is in accordance with law and is necessary in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.
Privacy extends to those aspects of a person’s life for which he or she has a legitimate expectation. Examples of these expectations are privacy in relation to his or her home, family life and intimate relationships. A person’s right to privacy may be violated in various ways, for example, when a violator opens and reads confidential communications addressed to someone else, by prying into the person’s private life in an unwarranted manner, or by means of a communication device such as a cell phone, camera, telescope, bugging device, etc.
When deciding whether one’s right to privacy has been violated, regard must be had to the relationship between the victim and the violator, their ages, the persistence of the conduct complained of, the degree of publicity attached to the conduct and the victim’s social position.
While on the issue, regard must also be had to whether a violation of the right to privacy has taken place; the manner in which the information was obtained; the nature of the information (about intimate aspects of the victim’s life); the purpose for which the information was initially collected; and the manner and nature of the dissemination of the information (i.e., the information was communicated to social media platforms and/or the general public or any persons to whom the victim could reasonably expect such private information would be withheld).
Right to dignity
Article 8 of the Namibian Constitution stipulates that the dignity of all persons shall be inviolable. The grammatic meaning of ‘inviolable’ means ‘to never be broken, infringed or dishonoured’. Human dignity (or worth) is defined as the capacity for, and the right to, respect as a human being, and this relates to each and every person.
Human dignity arises from all those aspects of the human personality that flow from human intellectual and moral capacity, which in turn enables them to exercise their own judgement; to have self-awareness and a sense of self-worth; to exercise self-determination; to shape themselves; to develop their personalities; and to strive for self-fulfilment in their lives.
Initiating the
transmission of images
One of the state’s interests is to uphold public order, such as enforcing laws that prohibit obscenity. The State therefore enacted the Communications Act, Act No. 8 of 2009, and one of its primary aims is to manage the internet and to set permissible limits for users of communication devices.
According to section 117(c)(ii), it is an offence to initiate the transmissions of any comment, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy or indecent, with the intent of annoying, abusing, threatening or harassing another person, using a telecommunication device, such as a cell phone, laptop, pad, desktop, etc.
If a perpetrator is found guilty of initiating the transmission of comment, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy or indecent, with the intent of annoying, abusing, threatening or harassing another person, using a telecommunication device, the punishment is imprisonment for a period not exceeding five years or a fine not exceeding N$20 000, or both such fine and such imprisonment.
Defamation of character
The law of defamation seeks to find a workable balance between two equally important rights: the complainant’s right to dignity and privacy and the violator’s right to freedom of expression (society’s right to be informed).
The alleged victim needs to show that there was publication of their good name or reputation of defamatory matter (by word or conduct) referring to him or her. Furthermore, words or conduct are defamatory if they expose the victim to hatred, contempt or ridicule, or if they diminish the esteem in which the victim is held by others. Generally, publications occur when the defamatory words or behaviours are made known to at least one other person, apart from the victim.
It is important to note that communications over the internet will constitute publication sufficient for defamation. This is because communications through the internet cut across national and geographical boundaries, and these communications on the internet are, by and large, open and accessible to a potentially vast audience.
On the internet, publication occurs, for example, by the perpetrator sending someone a direct message on a social media platform containing defamatory content, posting defamatory content on social media platforms or making a defamatory statement in a forum where third parties are on, i.e., groups, video conferences, etc. Publications may consist of defamatory words, sketches, cartoons or digital photos. Therefore, publication occurs when another person, other than the person being defamed, reads the defamatory e-mail, message or statement, or sees the video, sketch, cartoon or photo.
Does online freedom of expression have any limitations?
Freedom of expression is recognised and protected as a fundamental right. Freedom of expression on the internet ultimately means that internet users should have the right to receive and impart information and ideas across national boundaries. However, freedom of expression is not an absolute right; it is therefore subject to the imposition of limitations and to strict scrutiny. An internet user who uses any of the abovementioned tools to commit TFGBV in the internet space must be seen to be belittling and embarrassing the victim of TFGBV.
In conclusion, TFGBV is an evil amongst us, and only we can fight this evil by sensitising ourselves about the subject matter. Potential victims must also be encouraged to take legal action against those that commit these vile acts using the internet space. The penalty clause that is referred to above is a tangible depiction of how serious and consequential it is to violate the dignities and privacy of another person.
These rights will mean nothing if society does not recognise a victim’s worth as a human being, as these are essentials that we, as a society, should always adopt. The commission of any TFBGV is excluded from the perpetrator’s right to freedom of expression using online platforms, as the right to freedom of expression cannot be used as a basis to violate another person’s rights to dignity and privacy or the state’s interest in upholding public order, such as enforcing laws that prohibit TFGBV.
Although this is seemingly advantageous, it also comes with its dangers and flaws.
One of the biggest challenges is that it is being used to perpetuate gender stereotypes and negative social norms and create vicious cycles in which inequalities are amplified and perpetuated through digital tools.
Technology-facilitated gender-based violence (TFGBV) includes any act of gender-based violence that is committed, assisted, aggravated and amplified in part or in full by the use of information and communication technologies (ICT) or digital media, including mobile phones, global positioning system (GPS) tracking devices, drones and non-internet-connected recording devices. But the most commonly used tool by perpetrators of TFGBV in evolving Namibia is mobile phones.
Moreover, evolving technologies, such as artificial intelligence (AI), may also give rise to new forms of violence, such as deepfakes.
TFGBV can be perpetrated in various contexts, including by intimate partners or ex-intimate partners, strangers and trolls.
The most common forms of TFGBV in Namibia are sextortion, cyberbullying, online harassment, online sexual harassment, image-based abuse (IBA) – creating sexual images depicting the victim using AI tools – revenge porn, impersonation and hacking.
Due to the rise in TFGBV cases in Namibia, it is prudent for the legislature, the judiciary, other stakeholders and the general public to be sensitised to the permanence and interrelation between offline and online GBV.
This is because TFGBV has the potential to escalate into life-threatening situations, mirroring the forms of offline GBV we are already familiar with, and it causes harm to victims’ mental and, at times, physical health.
Create awareness
In Namibia, like many other countries, it is our most vulnerable members of society, women and girls, and more recently even men and the boy child, who fall victim to TFGBV.
The most disheartening fact is that, due to the lack of knowledge on the subject, TFGBV is on the rise in Namibia, but we are not aware of this because victims are not acting against perpetrators. Which then leaves perpetrators believing that it is “okay” for them to commit TFGBV because they believe their right to freedom of expression is unlimited.
One of the most recent incidents occurred last year, when the perpetrator shared obscene images of the victim on social media platforms, and the victim took a bold decision to open a criminal case against the perpetrator.
The perpetrator was subsequently arrested and charged with contravening section 117 of the Communications Act, Act No. 8 of 2009 – initiating the transmission of images or other communications which are obscene, lewd, lascivious, filthy or indecent with intent to annoy, abuse, threaten or harass another person, and defamation of character.
As always, our Namibian society, due to a lack of knowledge on the subject, had different opinions on the issue. Some were of the view that the victim deserved it and the perpetrator was simply expressing themselves through social media platforms, whilst human rights advocates and sympathisers offered different views, arguing that the victim’s constitutional rights to privacy and dignity were violated.
Right to privacy
Article 13 of the Constitution states that, the privacy of one’s home, correspondences or communications shall not be interfered with, unless it is in accordance with law and is necessary in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.
Privacy extends to those aspects of a person’s life for which he or she has a legitimate expectation. Examples of these expectations are privacy in relation to his or her home, family life and intimate relationships. A person’s right to privacy may be violated in various ways, for example, when a violator opens and reads confidential communications addressed to someone else, by prying into the person’s private life in an unwarranted manner, or by means of a communication device such as a cell phone, camera, telescope, bugging device, etc.
When deciding whether one’s right to privacy has been violated, regard must be had to the relationship between the victim and the violator, their ages, the persistence of the conduct complained of, the degree of publicity attached to the conduct and the victim’s social position.
While on the issue, regard must also be had to whether a violation of the right to privacy has taken place; the manner in which the information was obtained; the nature of the information (about intimate aspects of the victim’s life); the purpose for which the information was initially collected; and the manner and nature of the dissemination of the information (i.e., the information was communicated to social media platforms and/or the general public or any persons to whom the victim could reasonably expect such private information would be withheld).
Right to dignity
Article 8 of the Namibian Constitution stipulates that the dignity of all persons shall be inviolable. The grammatic meaning of ‘inviolable’ means ‘to never be broken, infringed or dishonoured’. Human dignity (or worth) is defined as the capacity for, and the right to, respect as a human being, and this relates to each and every person.
Human dignity arises from all those aspects of the human personality that flow from human intellectual and moral capacity, which in turn enables them to exercise their own judgement; to have self-awareness and a sense of self-worth; to exercise self-determination; to shape themselves; to develop their personalities; and to strive for self-fulfilment in their lives.
Initiating the
transmission of images
One of the state’s interests is to uphold public order, such as enforcing laws that prohibit obscenity. The State therefore enacted the Communications Act, Act No. 8 of 2009, and one of its primary aims is to manage the internet and to set permissible limits for users of communication devices.
According to section 117(c)(ii), it is an offence to initiate the transmissions of any comment, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy or indecent, with the intent of annoying, abusing, threatening or harassing another person, using a telecommunication device, such as a cell phone, laptop, pad, desktop, etc.
If a perpetrator is found guilty of initiating the transmission of comment, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy or indecent, with the intent of annoying, abusing, threatening or harassing another person, using a telecommunication device, the punishment is imprisonment for a period not exceeding five years or a fine not exceeding N$20 000, or both such fine and such imprisonment.
Defamation of character
The law of defamation seeks to find a workable balance between two equally important rights: the complainant’s right to dignity and privacy and the violator’s right to freedom of expression (society’s right to be informed).
The alleged victim needs to show that there was publication of their good name or reputation of defamatory matter (by word or conduct) referring to him or her. Furthermore, words or conduct are defamatory if they expose the victim to hatred, contempt or ridicule, or if they diminish the esteem in which the victim is held by others. Generally, publications occur when the defamatory words or behaviours are made known to at least one other person, apart from the victim.
It is important to note that communications over the internet will constitute publication sufficient for defamation. This is because communications through the internet cut across national and geographical boundaries, and these communications on the internet are, by and large, open and accessible to a potentially vast audience.
On the internet, publication occurs, for example, by the perpetrator sending someone a direct message on a social media platform containing defamatory content, posting defamatory content on social media platforms or making a defamatory statement in a forum where third parties are on, i.e., groups, video conferences, etc. Publications may consist of defamatory words, sketches, cartoons or digital photos. Therefore, publication occurs when another person, other than the person being defamed, reads the defamatory e-mail, message or statement, or sees the video, sketch, cartoon or photo.
Does online freedom of expression have any limitations?
Freedom of expression is recognised and protected as a fundamental right. Freedom of expression on the internet ultimately means that internet users should have the right to receive and impart information and ideas across national boundaries. However, freedom of expression is not an absolute right; it is therefore subject to the imposition of limitations and to strict scrutiny. An internet user who uses any of the abovementioned tools to commit TFGBV in the internet space must be seen to be belittling and embarrassing the victim of TFGBV.
In conclusion, TFGBV is an evil amongst us, and only we can fight this evil by sensitising ourselves about the subject matter. Potential victims must also be encouraged to take legal action against those that commit these vile acts using the internet space. The penalty clause that is referred to above is a tangible depiction of how serious and consequential it is to violate the dignities and privacy of another person.
These rights will mean nothing if society does not recognise a victim’s worth as a human being, as these are essentials that we, as a society, should always adopt. The commission of any TFBGV is excluded from the perpetrator’s right to freedom of expression using online platforms, as the right to freedom of expression cannot be used as a basis to violate another person’s rights to dignity and privacy or the state’s interest in upholding public order, such as enforcing laws that prohibit TFGBV.
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