The Legal and Moral Cost of Sharing Non-Consensual Intimate Content Online in South Sudan

Introduction

In the vibrant digital age, where one click can send shockwaves across South Sudan’s bustling social media platforms, the power to share comes with profound responsibility. Imagine the pain of seeing your most intimate moments or those of your loved ones circulating on social media platforms – exposed to anyone who cares to own a digital device (even those who don’t have digital devices get to hear it). This is the new normal in South Sudan’s social media platforms, where some individuals are often stripped of their consent, and their most intimate moments weaponized to shame and/or destroy them.

In South Sudanese society, this is not only a personal betrayal but comes with serious legal consequences – ranging from criminal and/or civil charges, which an overwhelming majority seems unaware of. However, ignorance of the law is no defense. The stakes are high, from shattered reputations and damage costs to prison sentences. Therefore, think twice before hitting the send and/or share button on intimate content(s). This article provides insights on the existing legal framework that safeguard our dignity and highlights the penalties against those who publish or disseminate videos/photos that compromise other people’s dignity. It also highlights precedents/case laws in legally advanced countries like Kenya.

Picture a young woman in Juba whose future vanished before her eyes when her private photos/videos, shared in trust and confidence, circulated South Sudan’s digital spaces, robbing her of her dignity. She becomes the talk of the neighborhood, her job or marriage prospects vanish, and her family pride becomes utter shame. Or Consider Y, a man whose intimate photos and videos, leaked by a former friend, become a cruel joke in his community, forcing him into isolation. These are not just imaginative stories but rather real wounds felt across South Sudan.

Sharing non-consensual content damages reputations, strains and ends relationships, and scars for life – the pain cuts deep, leaving emotional and social scars that linger long after the post is deleted.

South Sudan’s Legal Shield: Laws that Protect you

South Sudan’s legal framework comprise of a hybrid of statutory law, customary law, and some historical elements influence by the Sudanese governance system before her independence in 2011. The country lacks an explicit legal framework in addressing the challenge of disseminating non-consensual intimate photos or videos on social media as compared to her immediate neighbors such as Kenya. Kenya boasts of a comprehensive constitution (2010) which is reinforced by specified and robust digital laws, comprising of the Computer Misuse and Cybercrimes Act (2018) and Data Protection Act (2019).

However, the Penal Code Act (2008) and the Cybercrimes and Computer Misuse Provisional Order (2021) can be applied in addressing this challenge.

Criminal Laws

a) Penal Code Act, 2008

1. Section 289 (Defamation): This section criminalizes the intentional publication of material that harms a person’s reputation. If intimate photos or videos are leaked with the intent to defame or humiliate, this could apply.
   Punishment: Imprisonment for up to two (2) years or a fine or with both.
2. Section 250 (Word, gesture, or Act Intended to Insult the Modesty of a Woman): Sharing intimate content could be interpreted as an act that insults the modesty of a woman as it violates her privacy.
   Punishment: Two (2) years or a fine or with both.
3. Section 260 (Sale of obscure books, etc.): This section prohibits the sale, DISTRIBUTION, and importing/printing of materials that exhibit to public view any obscure material.
   Punishment: Three (3) years or fine or with both.

b) Cybercrimes and Computer Misuse Provisional Order (2021)

1. Section 18 (Publication of Indecent Content and Privacy): This section prohibits disseminating any material that violates privacy or interferes with someone’s private or family life.
   Punishment: Three (3) years or fine or both.

Civil Laws: Tort of Invasion of Privacy

South Sudan’s legal system, influenced by common law traditions via Sudan, may recognize a civil claim for invasion of privacy. Leaking intimate photos could be actionable as an intrusion into private affairs or public disclosure of private facts, though this would depend on judicial interpretation as privacy torts are not explicitly codified.

Damages under the Civil Procedure Act, 2007: Victims could sue for damages (e.g., emotional distress, reputational harm) under
general civil law principles, though specific statutes targeting non-consensual intimate image sharing are absent.

Precedents/Case Laws

There are insufficient documented judicial precedents in South Sudan explicitly addressing lawsuits for leaking intimate photos or videos on social media. The legal system is still evolving, and cases involving digital privacy violations are rarely publicized. Additionally, South Sudanese consider such issues shameful and may not want to pursue them in court, making it difficult to establish a precedent.

Practical Considerations

Victims in South Sudan could file a criminal complaint with the police under the aforementioned legal provisions, potentially leading to prosecution. Civil suits would need to approach a civil court, though success might depend on judicial willingness to extend privacy or defamation principles to digital contexts.

Selected Precedents/Case Laws From Kenya

1. MWK & Another v. Attorney General & 4 others [2017] KEHC 1496 (KLR)

Case Details: MWK, a female minor, was arrested by the Kenyan Police for alleged drug use. Officers stripped her in the presence of male officers and/or other students and members of the public and photographed her or allowed or permitted third parties to take her nude photographs. As a result, MWK and her guardian sued the Attorney General and Police officers, claiming violations of her rights to dignity (Article 28), privacy (Article 31), and protection from degrading treatment under the Constitution.

Court ruling and outcome: A Declaration was issued that the 1st petitioner was entitled to damages for violating her constitutional rights to dignity, degrading treatment, and privacy. That judgment was entered jointly and severally in favor of the 1st petitioner against the respondents for a global sum of Ksh. 4,000,000/= (appr. $38,800) by way of general damages.

Significance: It set a strong precedent for holding public officials accountable for non-consensual image sharing, framing it as a constitutional violation.

2. Roshanara Ebrahim v. Ashleys Kenya Limited & 3 Others [ 2016] eKLR

Case details: Roshanara Ebrahim, dethroned as Miss World Kenya 2015, sued her ex-boyfriend, Frank Zahiten, and the pageant organizers after he (Frank) shared her nude photos with them (organizers), leading to her dismissal. The High Court ruled that her privacy rights under Article 31 of the Constitution (2010) were violated.

Court ruling and Outcome: The court held that the petitioner (Roshanara) had a legitimate expectation of her privacy and did not waive it by taking nude photographs and did not consent to their dissemination to third parties. The 3rd respondent (Frank/ex-boyfriend) was ordered to pay damages of Ksh—1Million (appr. $9,700) for violating the petitioner’s right to privacy.

Significance: It is a landmark civil case emphasizing constitutional privacy protections over intimate images.

Gaps in Addressing Non-Consensual Sharing of Intimate Photos and Videos

1. Lack of specific legislation: South Sudan’s Penal Code Act (2008) (sections 250, 260, and 289) only addresses related offenses such as defamation, insulting modesty, and obscene materials. It does not explicitly criminalize such a derogatory issue and lacks specificity pertaining to digital space, thereby leaving gaps in prosecuting “revenge porn” or cyber-related privacy violations. It is also worth mentioning that, if such cases were to be litigated civilly, many South Sudanese would not afford the damages fee imposed upon them by the Courts.
2. Poor technological infrastructure: South Sudan’s weak internet penetration and heavy reliance on mobile data makes it hard to trace or remove harmful content.
3. Cultural and gender norms: Patriarchal norms and the stigma that comes with sexual-related incidents discourage victims, especially women, from reporting violations. Victims risk being blamed, as cultural expectations such as family honor take precedence over individual rights.

Recommendations to Address the Gaps

1. Enact specific Cybercrime legislation that explicitly criminalizes non-consensual sharing of intimate images/videos. Kenya’s Computer Misuse and Cybercrime Act (2018) could provide a good model, which could contain stricter sanctions as deterrents for such a prevailing vice.
2. Advocate for localized content moderation in South Sudan through structured partnerships between the government and social media platforms.
3. Engage community leaders, elders, and customary courts in criminalizing non-consensual content sharing and how it violates South Sudanese values of dignity. Additionally, women’s groups should be trained to advocate for victims and challenge stigma, as in the case of Kenya’s FIDA (Federation of Women Lawyers).

Conclusion: Your Choice Shapes our Future

Every tap on your phone is a decision that has the potential to extend beyond your screen. The non-consensual dissemination of intimate images and videos is not only a criminal offense under our legal system but also a profound personal betrayal of our shared values as a nation.

The penalties, such as prison sentences (cumulatively 10 years if found guilty in 4 counts), fines, or civic damages, are just nothing but warnings – the actual cost is the trust we lose in each other. Therefore, we must protect our privacy, secure our devices, and report abuses that rob us of our dignity. Let’s honor each other and abide by our nation’s legal mechanisms by building an online community where dignity thrives.