On 24 March 2022, the Western Cape High Court overturned a gag order that prevented the appellant from speaking about her experiences of gender-based violence (GBV). Judges Henney and Thulare overturned an order made in the Magistrate’s Court which had prevented the appellant from alleging that she was raped by the respondent, an ex-boyfriend.
The rape allegedly occurred after they broke up in July 2015. In September 2019, the appellant posted about her experience in a closed, private group on Instagram in which she named her ex-boyfriend as her rapist.
The Women’s Legal Centre (WLC), which represented the appellant, noted that “the posts were intended to remain private and not for public distribution. Without our client’s consent or permission, someone in the private group made her posts public on various social media platforms.” In response, her ex-boyfriend secured a protection order against her, which among other things prohibited her from repeating the allegation that he had raped her.
In the judgment, the court emphasised that the appellant’s GBV allegations were not publicly posted and thus the appellant’s intention was not to cause harm to her ex-boyfriend, but rather to find collective healing through the private Instagram group. The court affirmed the right of the appellant “to speak out and to express herself about the experiences she had endured.” The court found that the Magistrate, in granting the original protection order, “perpetuated the notion that victims of gender-based violence should not speak out, should remain silent about their experiences and should be careful who they speak to.”
South African courts have been dealing with various cases relating to the use of online spaces to share experiences of GBV. Earlier this month, the Gauteng High Court’s ruled in favour of South African music producer DJ Euphonik in a defamation case over social media comments accusing him of GBV. In that judgment, Judge Fisher said that anyone who has a substantial social media presence is required to be responsible when posting in public. Fisher said statements made on the platform should also be based on and founded in “truth and fact.”
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