CRIME AND THE USE OF SOCIAL MEDIA
Members of neighbourhood watches, security companies as well as community policing forums often take pictures of suspects at crime scenes, which you can do, but the moment you send the picture to someone else or post it on a social media platform, it is considered published. You are not allowed to publish a picture identifying an “alleged suspect” in a crime on social media (WhatsApp, Facebook, Twitter, etc) before this person had appeared before a court of law. The same applies to pictures of anybody who “might be a witness” in a criminal case. This could jeopardise the case, especially if the suspect’s face is exposed.
The criminal can be acquitted by the court after arguing that his/her conviction was based on a prejudicial identity parade since his/her pictures were all over social media before the parade. A suspect is more likely to walk free from a criminal case if his or her identity has been publicised on social media platforms. This also applies to vehicle registration numbers as this may lead to cases of mistaken identity. The importance of following the identity parade procedures, as conducted by a senior police officer in line with the country’s criminal procedures, is essential for a successful prosecution.
In addition to the Police Act, section 35 of the Constitution affords every citizen the right to a fair trial. The publication of a photo identifying the alleged perpetrator could thus render the trial unfair and it might result in the suspect being acquitted. The same applies if the perpetrator is identified in public before an ID parade has taken place. A SAPS identity parade will not be conclusive. It may be argued that the witness or victim saw the suspects face on social media and identified the suspect based on the image portrayed rather than physically having seen the suspect commit the crime.
Everyone has the right to a good name and reputation and the person, who taints this with defamatory statements, by posting such a photo, can be held liable for damages in civil court. According to Section 69 of the South African Police Services Act, “No person may without the written consent of the National Provincial Commissioner, publish a photograph or sketch of a person who is suspected of having committed an offence and who is in custody…”. It goes on to state that “any person who publishes such a photograph shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months”.
The Criminal Procedure Act, Section 154 (2)(b) stipulates that: – “No person shall at any stage before the appearance of an accused in a court upon any charge referred to in section 153 (3) or at any stage after such appearance but before the accused has pleaded to the charge, publish in any manner whatever any information relating to the charge in question”.
A hefty fine, 12 months’ imprisonment or a massive civil suit could await you for defamation of character, should you post a picture of any “perceived criminal” on a social media platform and they are arrested and detained unlawfully.
Contravening the Criminal Procedure Act by identifying alleged perpetrators before they have pleaded is a criminal offence. Those found guilty can be either fined, or jailed for up to three years. If the person who has been wrongfully identified is under 18-years-old, the imprisonment could be five years.
Violations of the South African Police Act involving the publication of a picture of someone in custody before criminal proceedings start carries a possible sentence of either a fine or a year in jail.
These laws have been applied in South Africa. But making them stick in the era of social platforms like Twitter and Facebook presents a whole new set of challenges.
People who purposely mislead the police could also be charged with defeating the ends of justice.
Should people be in possession of photographs or video clips of suspects or crime scenes, they should rather consult with the SAPS before publishing them on the web or any social media portal.
Publishing of a photo could also result in the community taking the law into their own hands and causing bodily harm or the death of an innocent person.
Criminals and suspects do view the social media feeds of security companies, neighbourhood watches, CPF’s, etc for information. It can be a source of frustration when the community, be it with a good intention, misguidedly publicise information about crimes including putting up photographs and videos of vehicles used. As soon as the suspects become aware that the vehicle they are using is known, they will immediately change their vehicles making it more difficult to arrest them or tipping them off that their identity is known to allow them to flee before an arrest is made.
If you see a person in your neighbourhood and you have grounds to believe him/her to be a criminal, don’t just take a photo, naming him/her as a suspect, and post it. Rather state the “facts” around the circumstances and post that. If a photo is published then blur the faces of the subjects and vehicle registration numbers.