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MXIT, SOCIAL NETWORKING SITES AND THE LAW

Several newspaper reports - Teen in Mxit rape ordeal (The Star, 6 August, 2010); Girl, 15, terrified of MXit stalker (The Star, 28 March 2009); KZN families shocked by the dangers of MXit, (Carvin Goldstone and Se-Anne Rall, 20 October 2006); New teen porn shocker on MXit, (The Citizen, 23 February 2009); Young Durban girls post lewd pics on MXit, (The Independent, 28 February 2009); Teen, 13, sells pics of herself on MXit, (Afrikaaner-Genocide-Archives, 25 February 2009); MXit linked to missing teen, (Beeld, 28 May 2008); Lost girls in MXit drama: chat service linked to disappearance, (The Star, 12 April 2008); MXit girl back home, (The Star, 6 August 2009) and Fury over school sex lists, (Sunday Times Extra, 7 November 2010) - raise questions not only about the failure of chat room service providers, like MXit, to respond effectively and appropriately to the provisions of the Films and Publications Act related to the obligations of those who provide social networking and chat room services but also about the failure of the Film and Publication Board to ensure effective monitoring of compliance with the relevant provisions of the Act. There is little doubt that, as far as children and young people are concerned, there is complete integration of online activities into their lives. Children are using social networking, gaming, instant messaging and photo-sharing facilities provided by the Internet and mobile cellular phones with little or no distinction between online and offline activities, thereby increasing their vulnerability to risks of victimisation by online child predators. Social networking websites, like MXit, Facebook and Myspace, which provide facilities to enable persons, in particular those previously unacquainted with each other, to make online contact and communicate with each other, using tools like blogs, profiles, e-mails and photos, are attracting more and more children and young people. Statistics from the Teen Internet Survey, conducted in 2007 by the Washington-based National Centre for Missing and Exploited Children, showed just how popular social networking sites are among children and young people: •

71% of adolescents have set up online profiles 69% of these adolescents get online personal messages from people they do not know on a regular basis 64% of youth post photos or videos of themselves online, and almost all do not really think about who might be viewing them 56% post information about where they live and nearly 10% posted their cell phone numbers online, and

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19% of adolescents reported that they have been harassed or bullied online, with girls more likely to be harassed or bullied than boys.

Social networking sites and chat rooms have become the favourite hunting grounds of paedophiles and child predators and most children are naive to the risks posed by those seeking childvictims. Children see chatting online as fun, totally unaware of the risks they expose themselves to from online child predators. The problem is that children see the online world as very different to the real world they know, and are tempted into saying and doing things that they would not dream of if they met someone face-to-face in the offline world. Children are known to give out personal information, such as mobile numbers, and pictures of themselves, to strangers they meet online but which they would not do with a stranger offline. Social networking sites are not what they seem to be. Recently, a social networking site, which was, in fact, a child pornography website, was broken up by US law enforcement. The Associated Press reported on 27 May 2010 that “Federal prosecutors.... are working with police in several countries to investigate suspects in a child pornography ‘social networking site’ that at one point had more than 1,000 members trading explicit images. U.S. authorities announced Wednesday that they had broken up the international online child porn site, saying more than 50 people had been arrested in more than 50 states since the 2008 start of the investigation. They said they are also seeking the extradition of several suspects from overseas, including the alleged ringleader, Delwyn Savigar, who is serving a 14-year prison term in England for sexually assaulting three underage girls and who created and ran a passwordprotected website from which members could access collections of sexual images, some including as many as a million files, share their fantasies about having sex with children and give advice to each other about how to build their collections and avoid getting caught. Assistant U.S. Attorney Steven D. DeBrota said, ‘This was a social networking site, really.’.....The group had about 1,000 members at its peak.....the investigation was kept secret for so long to avoid tipping off suspects.....the government is working with police in several countries, including France, Germany and England, to investigate other suspects..... Investigators also believe the group had members in Asia, Africa and South America.” More recently, Australian police reported that an international child pornography ring that operated on Facebook was brought down with the support of the social networking site. The Sydney Morning Herald newspaper reported on Friday 27 August 2010 that Facebook management knew about the pornography on its website and had deactivated accounts of people involved, but had not informed police. Facebook and Australian Federal Police issued a joint statement in response to the report saying the networking site had immediately taken action once a police investigation began, and its assistance was "integral

to bringing down this international child pornography syndicate. Eleven people have been charged in Australia, Britain and Canada in connection with the syndicate, which involved people using Facebook to distribute and view graphic sexual images. Child predators have coined a term for their search for child-victims in chat rooms – “chicken hawking”. A predator will enter a chat room to look for a child-victim. He carefully observes the behaviour of those in the chat room and identifies someone he believes to be a child. Typically the predator will try to befriend the child by pretending initially to be of the same age and with similar interests. After a few minutes of initial chat, he will persuade the child to go off into a private chat room where just the two of them will “talk”. Once in a private chat room, the predator will seduce the victim into exchanging contact addresses, including mobile telephone numbers. The child predator will seek to draw the child into his web and may encourage the child to take pornographic photographs of himself or herself, either alone or with friends. Eventually, after successful “grooming”, the predator will seduce the child into a meeting in the real world where the predator would sexually abuse the child – and sometimes even murder the child to protect himself. The tragic case of the tragic case of Ashleigh Hall is a chilling reminder of the dark side of the Internet and confirms Richard Lowe’s warning in his paper, A Dangerous Environment: “.....Internet is a dangerous place for your children. Don’t even begin to believe that your child is safe. There are more dangers than you can possibly imagine waiting to lure children to their doom. You had better be aware of what’s happening and take steps to shield them from danger.....if you don’t, your child’s sanity and safety are at serious risk.” Ashleigh Hall, a 17-year-old girl from County Durham in the UK, was contacted on Facebook by a registered sex offender, Peter Chapman, posing as a teenage boy, for an offline meeting. He then kidnapped, raped and murdered her. He was subsequently arrested, convicted and jailed for 35 years. Section 24C of the Films and Publications Act, No 65 of 1996, introduced by the Films and Publications Amendment Act, No 3 of 2009, is Parliament’s response to the increasing dangers from online child predators through the rise in children’s connectivity to the Internet. What was of concern to Parliament was evidence of the role of the Internet in the facilitation of paedophilic acts.....not merely through the transfer of child pornography, but by providing a supportive context and by changing opportunities individuals might have for contact with children through chat rooms, web sites and e-mail. Time, space, borders and distances make no difference to who can communicate with whom. Section 24C imposes clear obligations on those who provide and operate social networking and chat room services which attract children. In terms of section 24C(1)(a), a “child-oriented service” means a contact service and includes a content service which is specifically

targeted at children. A “contact service” means any service intended to enable people previously unacquainted with each other to make initial contact and to communicate with each other and “content service” means the provision of content or the exercise of editorial control over the content conveyed via a communications network, as defined in the Electronic Communications Act, No. 35 of 2005, to the public or sections of the public. It is clear, from the definition of “child-oriented service” that section 24C applies to all social networking and chat room services operating from within the Republic and not only to services specifically targeting children. Given that registering as a user on a social networking website, or chat room, with a fake profile is not a problem, it is not surprising that Parliament did not restrict the application of section 24C to services intended only for children. Social networking and chat room facilities are favoured by online child predators for “chicken hawking”. And they are well aware that children, and especially young people, do not restrict their online activities only to social networking sites and chat rooms that are designed for children. Section 24C(2) of the Films and Publications Act, No 65 of 1996, imposes five obligations on all those who provide and operate social networking and chat room services within the Republic. Subsection(a) requires social networking and chat room operators to “moderate such services and take such reasonable steps as are necessary to ensure that such services are not being used by any person for the purpose of the commission of any offence against children”. Most social networking sites and chat rooms do have moderators but, unfortunately, not specifically for the purpose of ensuring that their services are not abused by child predators. Moderating such services for the purpose of protecting children requires moderators who are able to identify potential child predators through their behaviour, such as when a subscriber invites a child into a private chat room. A “reasonable step” is for social networking and chat room operators to ensure that moderators are familiar with predatory behaviour and “paedophile lexicon” – the language of paedophiles – to be able to distinguish between innocent chats amongst children or children and adults, and the predatory language of paedophiles and child predators who masquerade as children to gain the trust of their targeted childvictims. Subscribers who flatter a child into entering a private chat room, or ask a child what problems they have and identify with those problems to establish a bond or ask about the location of a child’s computer and whether the child’s parents or other adults are in the room or use language suggesting real love or, obviously, use sexually-suggestive

words and phrases should be identified as potential child predators and be blocked and locked out from that chat room. Rob Marcus, the UK-based Director of Chat Moderators, has made a number of suggestions which, if followed, will ensure compliance with subsection (a): “Registration: A robust registration process can work to deter potential paedophiles from using the sites, and as a last resort can act as a means of catching them after the event. An additional part of the registration procedure can involve charging a nominal fee and ensuring each person pays with a credit card so that they are identifiable. “Users will also have to provide a valid email address by responding to a registration email. Were they banned for any reason, the email address and user name will be flagged as invalid. “All providers should have both child-orientated and non-child orientated chat rooms where the designs are different so that parents can clearly see whether they are in a child-friendly room. “Don’t allow private chat functions in child friendly chat rooms – this is where it is easiest for paedophiles to operate without being seen by other users. “Human moderation should be compulsory to an extent and have minimum requirements based on an average number of users. Levels of moderation should be clearly displayed for parents. It may be best to outsource a moderation company as many providers underestimate the time, effort and resource this takes in order to moderate effectively.” “It is important”, Rob Marcus concludes, “for all chat rooms to act responsibly and take adequate measures to ensure that children are not at risk while visiting their website...... In many instances the best way to arrive at a solution is to involve people with specialist knowledge who can discuss the best way forward and ensure that certain measures are being put in place by the online industry.” It is important to note that subsection (a) refers to the “commission of any offence against children” and not only to offences set out in the Films and Publications Act. For instance, the use of chat rooms to meet children for the purpose of grooming them into accepting intergenerational sex and luring them into offline meetings for sexual abuse is a computer-facilitated offence from which children must be protected. Offences against children and the mentally-disabled set out in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No 32 of 2007 is also relevant in so far as subsection (a) is concerned.

Subsection (b) requires all social networking and chat room operators to “prominently display reasonable safety messages in a language that will be clearly understood by children, on all advertisements for a child-oriented service, as well as in the medium used to access such child-oriented service including, where appropriate, chatroom safety messages for chat-rooms or similar contact services.” What is important in subsection (b) is not only the display of safety messages “in a language that will be clearly understood by children” but also that such messages should be displayed in a way and in places where children will not be able to avoid them. The safety message should be the first thing a child will see when entering a social networking site or chat room. Subsection (c) should, in fact, be read with subsection (b) in the sense that the provision of an onsite reporting mechanism “to enable children to report suspicious behaviour by any person in a chat-room to the service or access provider” should be part of the safety message. It is important to ensure that any reporting mechanism is child-user friendly and onsite. Subsection (d), which echoes section 24B(2), imposes an obligation on all social networking and chat room operators to “report details of any information regarding behaviour which is indicative of the commission of any offence by any person against any child to a police official of the South African Police Service.” There is, however, a slight difference between section 24B(2) and subsection (d): section 24B(2) provides for the reporting of knowledge or suspicion of any section 24B(1) offence i.e. offences related to child pornography, whereas subsection (d) refers to “behaviour which is indicative of the commission of any offence by any person against any child”. For instance, the sexual grooming of a child is an offence in terms of section 18 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No 32 of 2007 but not in terms of section 24B(1). The nature of what must be reported in terms of subsection (d) is much wider than what is required to be reported in terms of section 24B(2) – which means that operators of social networking and chat room services must familiarise themselves with all offences against children and not only the offences set out in the Films and Publications Act, No 65 of 1996. Subsection (e) is not a “discretionary” obligation, as may be interpreted by the expression “where technically feasible”. This subsection imposes an obligation on social networking and chat room operators to provide, “where technically feasible.....children and their parents or primary care-givers with information concerning software or other tools which can be used to filter or block access to content services and contact services, where allowing a child to access such content

service or contact service would constitute an offence under this Act or which may be considered unsuitable for children, as well as information concerning the use of such software or other tools.” The expression “where technically feasible” should not be interpreted as meaning where the technology makes it feasible to do so but as meaning where it is technically feasible either as part of the safety message required in terms of subsection (b) or where the social networking or chat room operators have contact details of children who are subscribers to their services or contact details of parents whose children are subscribers to such services. Including such information as is required under subsection (e) as part of the safety message would, however, satisfy the requirements of subsection (e). In terms of section 24C(3), failure to meet any of the obligations set out in section 24C(2) will expose social networking and chat room operators to criminal liability consequences. In addition, section 18(1)(d) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No 32 of 2007 provides that any person who arranges or facilitates a meeting or communication between a person and a child by any means from, to or in any part of the world, with the intention that such person will perform a sexual act with that child, will be guilty of the offence of promoting the sexual grooming of a child. Providing a service that will enable online predators to chat in private with child-victims, could, arguably, amount to facilitating communication between adults and children for the purpose of sexual grooming. It is not too farfetched to suggest that there could also be civil liability consequences – restitution or reparations for the pain and suffering endured by child-victims, and their families, from abuse by online predators through failure to meet the legal obligations imposed 24C(2). In the context of restorative justice, restitution to the victim by the offender is as appropriate as retribution by the state against the offender. Restorative justice is, after all, also concerned with responding appropriately and adequately to the material, financial, emotional and social needs of the victim of a crime. Children, and not the state, are the victims of sexual abuse and exploitation by child predators. US Code 18 U.S.C. § 2259(a), which mandates full restitution for children who are the victims of sexual exploitation and other abuse certainly supports the argument that South African social networking and chat room operators should suffer civil consequences, in addition to any penal sanctions, for failure to meet the obligations set out in section 24C(2). US legislators and courts have long recognized that children depicted in child pornography are harmed not only by the sexual abuse suffered by them in the creation of the images, but also by the subsequent distribution, possession, and viewing of the images of their abuse. They have also recognized the importance of awarding restitution

to victims who are harmed by such crimes to help make them whole, and to aid in their recovery. Restitution to child-victims by offenders who fail to meet legal obligations aimed at the protection of children from sexual abuse and exploitation is certainly within the spirit of the Minister for Justice and Constitutional Development’s Foreword to the Service Charter for Victims of Crime in South Africa: “Since 1994, and in keeping with the cultivation of a human rights culture, the focus has gradually shifted from an adversarial and retributive criminal justice system to that of Restorative Justice. Central to the concept of Restorative Justice is the recognition of crime as more than an offence against the state, but also as an injury or wrong done to another person. This is in line with the National Crime Prevention Strategy’s victim-centred vision for the criminal justice system. The ultimate goal is victim empowerment through meeting victims’ needs, be they material or emotional.” These are extraordinary times for our children because of the pervasiveness of information technology on their lives. In such times it is not enough to follow the road. It is necessary to know where it leads, and, if it leads to the traumatisation of our children, to follow another…and not to proceed with the utmost rapidity in the wrong direction. When we are confronted with a crisis, we cannot behave as though nothing very important is involved, as if it did not matter if we continued doing what we have been doing all along - with just a little more energy. We have to consider whether what we have done is wise, and, if it is not, to alter it. Our children should not expect anything less of us, for these are crimes against them for which we, as a society, must bear full responsibility. Iyavar Chetty