The DVA Act: one step closer to online safety
ABSTRACT
Changes to the Domestic Violence Amendment Act (DVA Act) have resulted in important recognitions of the role of online spaces and electronic communications in facilitating or enabling domestic abuse. This article unpacks these key changes to understand what this means for online safety.
KEYWORDS
Online harms reduction – Equality & inclusion – Safer spaces online – Digital literacy
INTRODUCTION
It’s all too rare that we can celebrate a win for improved protections against gender-based violence, on- or offline. But last month, President Cyril Ramaphosa signed a trio of laws amending our gender-based violence legislation which – if effectively implemented – can enhance protection against GBV, and improve access to justice for victims and survivors. The Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act, the Criminal and Related Matters Amendment Act, and the Domestic Violence Amendment Act, have been enacted in response to the persistent scourge of GBV that impacts the lives of women, children, and gender and sexual minorities every day.
There is room for improvement, but these updates to our legal framework are a step in the right direction in advancing online safety in the context of GBV. In particular, the Domestic Violence Amendment Act (DVA Act) recognises the role of online spaces and electronic communications in enabling domestic abuse. The recognition of online harms, coupled with some key changes that seek to promote equality and access to justice, mark an important step towards ensuring safer online spaces.
When the DVA Bill was first introduced in September 2020, the Bill reflected a few changes that suggested there may be some consideration of the role of technology in relation to domestic violence. This sparked the interest of a collective of activists, technologists, policymakers, researchers, and feminists, which made submissions to Parliament to highlight the need for responsive legal protections against online harms. The public participation process, coupled with the willingness of our lawmakers to engage with these recommendations, has opened the door for better protection against an array of online harms.
RECOGNISING ONLINE HARMS
There are some key definitional changes that have resulted in the relatively comprehensive recognition of online harms in the DVA Act. Several of these definitions were drawn from the submissions of the multi-stakeholder collective.
The first notable expansion relates to the new definition of electronic communications to include various forms of digital information such as audio, text, video, or images. Notably, the definition goes further to state that this includes information that is real, simulated or manipulated. This means that the Act could provide protections against the sharing of non‑consensual manipulated images such as deep fakes (videos or images that have been altered to create fake content that looks authentic).
The expanded definition of harassment now includes various forms of online harassment, such as:
- Repeatedly contacting a person by means of an electronic communication, such as social media, messaging platforms, or calls.
- Gaining unauthorised access to a person’s electronic devices or social media or email accounts.
- Using technology to monitor or track a person’s movement or activities without their consent.
- Sending a message or media to a person that:
- Is abusive, degrading, offensive or humiliating;
- violates or offends the sexual integrity or dignity of that person; or
- inspires a belief they may be harmed.
- Sending a message or media to one person about another person that contains private information or is abusive, offensive, or threating, as noted above.
The Act also extends the definition of intimidation, to include threatening conduct by way of electronic communications, and extends the definition of sexual harassment to include, for example, the sending of unwelcome electronic communications of a sexual nature. The extended definition of sexual harassment also provides protection against “outing” (the non-consensual sharing of information about a person’s sexual orientation, gender or gender expression).
Intimidation, harassment, and sexual harassment all form part of the umbrella term of domestic violence, which means that persons in the context of a domestic relationship who have been subjected to any of those harms, can use the DVA Act to seek protection against further harmful conduct. Simply put, these expanded definitions have created scope for protection against conduct such as doxing (publishing private or identifying information about a person), deep fakes, deadnaming (revealing a transgender or nonbinary person’s former name without their consent), outing, the non-consensual sharing of intimate images, and digital stalking.
EQUALITY AND INCLUSION
The new legislation also contains several provisions that recognise the intersecting forms of discrimination that can intensify experiences of GBV. For example, in response to public submissions, lawmakers amended the DVA Act to use gender neutral language, such as “they” instead of “he/she”. This decision to use appropriate and inclusive terminology means that anyone, regardless of gender, gender identity, or gender expression, can seek protection in terms of the Act. This marks the second time in South Africa’s recent history that the legislature has adopted gender neutral language. The Act also provides protection from outing as a form of sexual harassment and as a form of emotional, verbal, or psychological abuse. This is a significant step towards better protection for the rights of sexual and gender minorities, on and offline.
USING TECHNOLOGY IN ACCESS TO JUSTICE
Our lawmakers also recognised that technology could play a role in advancing protection and enabling access to justice. For example, the DVA Act makes it possible for victims and survivors to apply online for protection orders against acts of domestic violence. The Act also provides for a centralised database of domestic violence protection orders, which has the potential to improve the practical functioning of the protection order process. The Act also provides for electronic communications service providers to provide information to a court to assist in identifying the perpetrator behind a harmful electronic communication. This inclusion comes from a similar provision in the Protection From Harassment Act.
While these are welcomed additions, there are some cautions to note. South Africa’s persisting digital divide, where there is significant inequality to internet access and digital literacy, mean that there is a long way to go before these protections extend to all those who need them. There are also privacy implications, given that domestic violence protection orders contain sensitive information. The DVA Act recognises this and requires the administrator of the repository of protection orders to consult with the Information Regulator.
TOWARDS SAFER SPACES ONLINE
We should welcome these legal recognitions that the various forms of gender-based violence that occur offline are part of the same continuum of gender-based violence that occurs online. This creates scope for improved protection for those whose rights, freedoms, and dignity have been infringed. We can also celebrate the role of the public participation process in supporting the development of responsive and inclusive laws. This all marks an important step towards ensuring online safety.
However, more work needs to be done. We need digital literacy, training, and awareness for law enforcement officials, magistrates, and clerks to enable them to grapple with online harms and effectively implement the DVA Act. Digital literacy training should also be provided to members of the public. Recognising online harms, and knowing your options, is a crucial step towards a safer, accessible, and inclusive internet.
The DVA Act has given South Africa a unique opportunity to lead the way regionally and internationally on questions of online harms, and bring survivors and victims of online harms one step closer to the protection and justice they deserve.
* Tina is Senior Associate at ALT Advisory
