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CONTEXTUALISING THE PHENOMENON OF CYBER STALKING AND
PROTECTION FROM HARASSMENT IN SOUTH AFRICA

Shandr Sissing
1
& Johan Prinsloo
2


ABSTRACT
There is a scarcity of knowledge production with regards to cyber stalking as a manifestation
of cybercrime in the South African context. This article attempts to make a contribution
towards an understanding of some of the aspects involved in the process of cyber stalking,
especially since cyber stalking in South Africa is expected to increase as the Internet
continues to grow in popularity. The discussion centres on the nature of cyber stalking,
incorporating the international prevalence of this form of stalking, and distinguishes cyber
stalking from traditional stalking.. Additionally, the behaviours associated with cyber
stalking, the offenders and victims involved, as well as an examination of the role of social
networks, are outlined. Since it took significant legislative demarcation and clarification to
enhance the efficacy thereof, the article concludes with a discussion of reactive South African
protective measures contained in legislation regarding cyber stalking, namely the Electronic
Communications and Transactions Act 25 of 2002, the Domestic Violence Act 116 of 1998
and the Protection from Harassment Act 17 of 2011.

Keywords: Cybercrime; cyber stalking; cyber stalkers profiling; cyber stalking victims;
reactive and protective legislation.
INTRODUCTION

As a result of the scarcity of knowledge production and collection with regards to cyber
stalking, especially within the South African context, the authors embarked on an academic
journey of contributing to an understanding of some of the aspects involved in the process of
cyber stalking. Although cyber stalking in South Africa is currently in its infancy stage, the
frequency of cyber stalking is expected to increase as the Internet continues to grow in
popularity (Jaishankar & Sankary, 2005). The authors endeavoured to contextualise the
phenomenon within the larger milieu of stalking and harassment per se, thereby facilitating
more insight into the dimensions and complexity of cyber stalking, which can be viewed as
one of the many manifestations of cybercrime.

The conceptualisation of cybercrime emerged from a combination of the inception of the
Internet and the consistent expansion of new technology. Cybercrime has thus resulted in the
challenge of addressing old and new crimes facilitated by the use of new technology (Lucks,
2004: 34). As clarified by Schell and Martin (2004:225), cybercrime is a crime allied to
technology, computers and the Internet that causes harm to property and/or persons. The
nature of cybercrime therefore creates opportunities for the relatively effortless commission
of covert illicit online activities.

Cybercrime is divided into two broad categories cybercrimes resulting in harm to property
and cybercrimes resulting in harm to persons. The former category is commonly carried out
using hacking or so-called cracking, i.e. computer hacking by criminals, techniques and
includes various crimes such as flooding, virus attacks, spoofing, phishing and
phreaking. These types of crime have a primary goal which is to cause harm and damage to
property by means of destruction, infection, corruption, fraud and theft all using a computer
______________________________________

1
Lecturer, Department of Criminology and Security Science, University of South Africa.
E-mail: [email protected]
2
Research Professor, Department of Criminology and Security Science, University of South Africa.
E-mail:[email protected]
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and the internet as means of perpetration. The latter category deals with the direct harm
caused to persons through the commission of illegal activities. These crimes are more
personal and often have lasting consequences (Schell & Martin, 2004: 30).

In essence, all that is required for the commission of cybercrime is computer device, an
Internet connection and an individual with criminal intent (Vito & Maahs, 2012: 331). As
examined through this article, cyber stalking adopts these requirements in its commission.
The discussion commences with the nature of cyber stalking and distinguishes cyber stalking
from traditional stalking. Additionally, the behaviours associated with cyber stalking are
discussed as well as the offenders and victims involved in cyber stalking. The role of social
networks is examined while a theoretical framework is preliminarily outlined. Finally, the
South African protective measures contained in legislation regarding cyber stalking, are
presented.

As the topic was researched and explored by the authors, a realisation was reached of the
difficulty in determining the official extent and spread of cyber stalking. South Africa has no
official statistics pertaining to cyber stalking, and the crime is not even listed on the South
African Police Services website of Crime Code List (SAPS, 2011).

In South Africa, a web survey conducted in 2009 revealed that 43 percent of social network
users connect via the Internet and 35 percent via their cell phones (Muller, 2010). This
illustrates the extent of such internet connection usage as well as the diverse portals available
to access social networks. The research indicates that 74 percent of South Africans
specifically go online to visit social networking platforms thus signifying active participation
in social networks. A quarter of the survey participants have more friends online than they
know and interact with in real life. Interestingly, just under half of the participants feel
vulnerable to abuse by sharing their details online and 21 percent have experienced a breach
of their privacy on the Internet. In addition, the study revealed that 36 percent of the
respondents admitted to using a pseudonym online indicating the anonymity that the
Internet provides not only to potential victims but also offenders (cf. Muller, 2010). These
statistics indicate the frequency of the use of social networking sites and the vulnerabilities it
creates among its users.

In research done by the Youth Research Unit (YRU) of the Bureau of Market Research of the
University of South Africa (UNISA) in 2011, the nature and occurrence of online
victimisation was highlighted. The nationwide survey targeted young people between the
ages of 12 and 25 years old. Of the results, almost 15 percent of the respondents felt
threatened by online harassment, the majority of which who felt this way fell within the 16
to18 years old category (Basson, Van Aardt & Tustin, 2011:1). The research conducted by
the University of South Africa indicates the risk of online harassment faced by young people
across the country, thus highlighting it as a potential crime phenomenon needing more
research and academic understanding and insight.

Mugoni (2011:1) highlights the dangers of the Internet, especially to women. She writes that
more and more people are obliviously sharing personal information online. Research suggests
that 57 percent of young women (18 to 34) prefer to chat online rather than face-to-face. This
potentially opens the doors to their online victimisation. Mungoni further urges people to
become more computer literate as they are unknowingly allowing themselves to fall prey to
cyber stalking. She concludes by labelling the Internet as paradoxically, both a tool of
empowerment and a mechanism whereby women can be terrorised.
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STALKING VERSUS CYBER STALKING

The concepts of stalking and cyber stalking are often confused, misunderstood and
misinterpreted. Stalking per se is not a crime but only as far as this anti-social behaviour
meets the legislative criteria qualifying it as a crime. Although stalking is not regarded by
name as a crime in South Africa, stalking behaviour is addressed through existing offences,
such as assault, crimen injuria, trespassing or malicious damage to property and domestic
violence (see South African Law Reform Commission, 2006). Similarly, cyber stalking is
distinguished as a crime through legislation such as the Protection from Harassment Act 17 of
2011. How then are stalking and cyber stalking distinct from each other? Are there any
similarities between the two offences?

Stalking
Stalking is a social problem that has demanded the attention of, not only the general public,
but also the law, whereby it is constituted as an illegal act (South African Law Reform
Commission, 2006). The word stalk entails the act of following ones prey in similar
fashion to an animal stalking its prey. Stalkers are often referred to as prowlers or poachers as
they stealthily search for prey (Mullen, Path & Purcell, 2009:1), and has become a part of
societys vocabulary and a familiar concept in todays culture (Mugoni, 2011). As defined by
Mullen et al. (2009:2) stalking is the abnormal and prolonged pattern of behaviour focused on
a specific individual. Furthermore, it involves continuous unwanted intrusions,
communication and contact. Brown (2007:48) denotes stalking as any unwanted contact
between an offender and victim, in which threats are made directly or indirectly and which
causes the victim to become fearful. Additionally, Brown (2007: 48) points out that, in the
past, stalking was associated with behaviour linked to domestic violence but is now
established as a substantive criminal act in its own right. Relevant South African legislation is
the Electronic Communications and Transactions Act 25 of 2002, also known as the ECT
Act. Coinciding with this is the definition of cybercrime which defines cybercrime as any
conduct on the Internet or connected with the Internet or Internet usage which constitutes a
crime in terms of the South African criminal law, including any conduct punishable in terms
of Chapter XIII of Act 25 of 2002. (South Africa, 2006a). Finally, the Protection from
Harassment Act 17 of 2011 was published in Government Gazette 34818 on 5 December
2011 (South Africa 2006b) (see later discussion on this legislation).

Cyber stalking
In contrast to the physical stalking as outlined above, cyber stalking is the use of the Internet
or new technology systems to stalk or harass an individual by repeatedly sending messages
and abusing a victims privacy online. The acts involved here include threats of harm or
intimidating behaviour. This behaviour results in a person feeling scared and unsafe. It is
further defined as the use of the Internet, e-mail or other any other electronic communication
system to follow someone or threaten them (Longman Dictionary of Contemporary English,
2003:390).

Cyber stalking is known as the most prevalent type of online harassment. When a stalker is
not stopped in the beginning stages of harassment, such as confrontation through online
mediums, for instance through e-mail or social network interaction, the perpetrator begins to
feel increasingly more powerful. This is when harassment escalates so that the harasser
encroaches upon every area of a victims online lifestyle. Cyber stalkers can easily obtain
their victims new e-mail address and install a system which allows them to be alerted
whenever their prey is online. Once this link is established it opens doors to various
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opportunities to bombard their victims with spam, subscribe them to mailing lists, free offers,
pornographic web sites and other unwanted activities (Hitchcock, 2006:159-160).

Mullen et al. (2009:2) suggests that cyber stalking can function as a form of sexual
intimidation. This stems from the notion that it potentially exposes the victims thereof to
sexual denigration, exploitation or subordination. Hitchcock (2006:159) illustrates the sexual
dangers of cyber stalking with the following example.

A young lady began to receive numerous messages on her answering machine
from men she did not know. They told her that they had retrieved her contact
details from a website of which she was unaware. Similar events escalated until
one day the victim answered her phone to find herself in a conference call with
two strange men claiming to be online with her at that very moment. They further
explained that they often visited a web site which portrayed photographs of her
together with her saying that she wanted to be the white sex slave of a black gang.
In this way, cyber stalking exceeds the restrictions of trivial harm as it escalates
into a serious crime such as sexual exploitation.

Cyber stalking is often regarded as a mere extension of stalking (Mullen et al., 2009:2). The
following account highlights the differences between cyber stalking and stalking.

Differences between stalking and cyber stalking
Across the globe, governments recognise the distinctiveness of cyber stalking and stalking as
it is defined and differentiated in law. For instance, in America, some states have cyber
stalking legislation apart from the stalking legislation. Also, some stalkers may never engage
in stalking behaviour outside the realms of cyber space, therefore cyber stalking cannot be
regarded as an extension of stalking as no offline stalking took place. Lastly, new
technologies will continue to lead to new types of crime, for instance there would be no
computer viruses if there were no computers (Reyns, 2010:16). In this way, new technology,
precipitates new crimes such as cyber stalking. These differences highlight the imperative
need to investigate cyber stalking as a phenomenon in its own right. The main disparity
between stalking and cyber stalking stems from the methods of pursuit used.

Stalking refers to harassment that takes place within physical proximity of the victim whereas
cyber stalking adheres to the repeated pursuit of a victim by exploiting various electronic
communicative avenues. These online behaviours are facilitated by technological innovations
that allow potential stalkers to pursue their victims regardless of any spatial restriction
(Reyns, 2010: 16). As clarified by Brookman, Maguire, Pierpoint and Bennett (2010:199),
the essence of cyber stalking engages the employment of electronic resources such as the
Internet, to pursue, stalk or contact another person in an unsolicited fashion. However, Bocij
(2004:72) identifies many similarities between the victims of cyber stalking and stalking
which can be used to generate common themes involved in the victimology of cyber stalking.
These themes will further be explored in more detail below. The dynamics surrounding the
cyber stalker, the victim as well as behaviour associated with cyber stalking will be examined
next.

Behaviours associated with cyber stalking
Although there has been relatively little information gathered by research into the behaviours
associated with cyber stalking, a few common patterns have emerged (Bocij, 2004:72). The
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following serves as a compilation of the major patterns associated with cyber stalking
behaviour (Bocij, 2004:72)

Sending recurring unwanted messages
The repetitive sending of unwanted messages is a common method used by cyber stalkers.
These assailants may either be known and unknown to their victims. E-mail is the ideal
medium for sending such messages as it is relatively cheap and convenient as well as
affording the offenders the opportunity to conceal their identity by using unknown accounts
and anonymous e-mail. According to Pittaro (Jaishankar & Sankry, 2005), these unknown
accounts are facilitated through various websites. For instance, cyber stalkers can send
anonymous e-mails, in large quantities, through websites such as The Payback (see
http://www.thepayback.com). This website intentionally conceals and protects the senders
name and contact information (Jaishankar & Sankry, 2005). Victims are left feeling
overwhelmed and unable to use their e-mail service effectively.

Making threats
In most incidents of cyber stalking, the cyber stalker makes threats (veiled or otherwise)
against victims, their family or colleagues. Threats are usually made via e-mail or instant
messaging. In some cases, the cyber stalker may use other methods such as facsimile, text
messages or social networks. The victims may receive abusive and offensive messages, and
even have pornography attached to such messages. Pittaro (Jaishankar & Sankry, 2005)
adds that cyber stalkers aspire to cause constant distress through a variety of threatening
behaviours.

Spreading false accusations
Cyber stalkers may try to harm the reputation of their victims by posting false information
about them on the Internet or public portals. Attacks on anothers credibility can range from
malicious postings on a blog to the transmission of false claims on the Internet (see
http://www.danieljensenlaw.com/contact/ for an example of a law firm specialising in
fighting false crime claims).

Attempts to collect information about the victim
Cyber stalkers engage in a variety of ways to gather information about their victims. These
range from approaching their victims friends, family or colleagues posing as a harmless
friend or business acquaintance, to hacking into computer systems and using social
networks or Internet search engines to trace people. In some cases, cyber stalkers may hire
private investigators or advertise for specific information via the Internet. Information,
which has been previously considered private and confidential, is now accessible through a
variety of websites that often charge a fee for the provision of an individuals name, phone
number, address and date of birth (Jaishankar & Sankry, 2005). They are usually interested
in gathering personal information, employment histories and financial records.

I mpersonating the victim
Cyber stalkers often attempt to pretend to be their victims through various Internet services.
This is done with the intention of causing humiliation and embarrassment as well as
encouraging other people to take part in such abuses. For instance the cyber stalker will
enter a chat room, using the victims identity, and post sexual and degrading invitations to
an online audience. In addition, the impersonation of victims may be used to make
fraudulent orders for goods or services thus taking part in identity theft (Bocij, 2004:14).

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Publishing private or embarrassing information
This behaviour is often associated with stalkers who act out of revenge and spite by
circulating e-mails, posting notices, or establishing websites containing personal, and often
embarrassing, details about their victims. The cyber stalkers intention is to disclose private
information about their victim to cause humiliation.

Encouraging others to harass the victim
Many cyber stalkers will involve third parties in the harassment process. For instance, the
cyber stalker may advertise the victims contact details with a message suggesting sexual
availability and often victims report to receiving hundreds of telephone calls and messages
in response to such advertisements. They may also engage in stalking-by-proxy in which
they enlist the help of their family and friends, claiming that they have been wronged by the
victim. Spence-Diehl (2008) notes that in this way, third parties are unknowingly lured into
helping cyber stalkers track and harass their victims.

Attacks on data and equipment
Cyber stalkers may also endeavour to damage a victims computer system by infecting it
with a virus or a destructive malware programme. This method of exploitation is used to
cause the user distress.

I dentity theft
This type of cyber stalking takes on many modifications and can comprise of ordering
goods and services on behalf of the victim or initiating contacts under the victims identity
in order to bring some sort of stress, humiliation or grief to the victim. This behaviour,
associated with cyber stalking, is different to the traditional sense of identity theft as the
motives are different. Within the cyber stalking parameters, imposed distress on the victims
is intended; whereas traditionally, identity theft is practised for monetary gain.

Arranging to meet the victim
In more extreme cases, cyber stalkers are known to travel to meet with their victims. This,
in turn exposes the victim to many dangers. Young people are particularly at risk as they are
targeted by paedophiles and other predators.

THE PROFILE OF THE CYBER STALKER

Although there is extensive research pertaining to the classification of stalkers, the
classification of cyber stalkers has received far less attention (Path, 2002:19). Instead,
research in this field, relies on a broad discussion of the cyber stalker and what is known in
this regard.

Lucks, (2004:2) describes the perpetrators of cyber stalking as a new breed of criminals who
are described as highly intelligent, detached from society and unable to deal with reality.
Furthermore, Meloy (1998:11) denotes them as paranoid and self-absorbed with Mullen et al.
(2009:154) highlighting their need for lust, power and control. By misusing their intelligence
and technological knowledge, cyber stalkers gain immense power by manipulating,
exploiting and trapping their prey via the Internet. Some cyber stalkers experiences of
rejection and malice thrust them on a quest for revenge by slandering the victims character
or the use of threats and harassment. Other cyber stalkers cause havoc by hacking into
computer systems whenever the opportunity arises (Lucks, 2004:2). The fact that the cyber
stalker functions within a virtual world thus increasing the vulnerabilities of potential victims,
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make cyber space a potentially dangerous environment (Meloy, 1998:12). The offender is not
restricted geographically and does not even have to be physically present at the scene of the
crime. The social proximity which may allow the offender to emotionally distance himself
from his harmful behaviour within the cyber world, probably limits the levels of social
anxiety offenders experience when they perpetrate a crime within the cyber environment.
This social anxiety most often functions as an inhibitor of aggression. However, aggression,
violence and deviant fantasies are encouraged, practiced and perfected within cyber reality.
This prompts concern as cyber stalkers find acceptance and even recognition for their
abnormal, deviant and criminal behaviour by other deviant online users. Meloy (1998:12)
further emphasises that anonymity plays a major role in the commission of cyber stalking as
the cyber stalker has the ability to avoid detection, hence further fuelling their destructive
behaviour.

In a typology developed by Mcfarlane and Bojic (2005), cyber stalkers are divided into four
categories the vindictive cyber stalker, the composed cyber stalker, the intimate cyber
stalker and the collective cyber stalker. The vindictive cyber stalker is malicious and spiteful
and threatens their victims more often than the other types of cyber stalkers. The composed
cyber stalker, targets the victim in a calm and poised manner and is motivated by the desire to
cause the victim constant distress. The intimate cyber stalker seeks to establish a relationship
with the victim based on obsession and infatuation. Finally, the collective cyber stalker is
cyber stalking which involves two or more cyber stalkers pursing the same victim. It is clear
that cyber stalkers are motivated by diverse reasons for engaging in cyber stalking.

VICTIMS OF CYBER STALKING

Bocij (2004:72) explains that there are many similarities between the victims of cyber
stalking and stalking and can thus be used to generate common themes involved in the
victimology of cyber stalking. Path (2002:43-48) divides the victims of cyber stalking in the
following broad categories.

Previous partners
This form of cyber harassment stems from the breakup of a romantic relationship. In many
cases, the harassment begins before the relationship has ended where the victims partner
already shows signs of intrusiveness, jealousy and control. Since the ex-partner knows the
victim intimately both offline and online stalking starts simultaneously. Cyber stalking by a
previous partner may consist of repeated phone calls, text messages and e-mails that are
threatening and abusive in nature. Cyber stalking, committed by a previous partner, is more
persistent and often more serious then cyber stalking by strangers. Victims of this type of
cyber stalking are often overwhelmed with guilt and shame as they blame themselves for
previously choosing to enter into a relationship with their cyber stalker.

Casual acquaintances and friends
These victims have usually had some kind of social encounter with the cyber stalker either
as friends or acquaintances. The cyber stalker may feel wronged by the victim or may
mistakenly perceive that their affections are not being returned which, in turn, prompts the
cyber harassment.

Professional contacts
In professions that deal with clients or patients, professionals often fall prey to victimisation
through cyber harassment. This is especially true with professions that deal with mentally ill
people who can easily misinterpret sympathy and concern for romantic affection.
Transference, may even take place when a patient confuses a doctors compassion for love, or
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the physical nature of the encounter is mistaken for sexual overtures; or between a lawyer and
a client, or between a religious minster and a member of the congregation (Barlow & Durand,
2009:20). These victims are often harassed through phone calls, letters, e-mails and gifts
which can result in great distress, disruption and disillusionment in their chosen professions.

Work colleagues
Cyber stalking in the workplace is usually perpetrated by fellow colleagues but can even be
extended to include cases involving clients or customers. Resentment, jealousy and rejection
are the most common reasons for their victimisation. These victims may be subjected to
threats and harassment which take place in various electronic ways. The type of stalker
usually monitors the chosen victims work performance closely in order to criticise and get
them into trouble.

Strangers
Victims in this category have had no prior contact with their stalkers or may be oblivious to
ever having had any form of contact with their stalker. Victims are usually targeted based on
their social status or attractiveness. Additionally, Pitarro (Jaishankar, 2012:283) states that
there has been an increase in the amount of cyber stalking cases perpetrated by strangers, as
the Internet grants cyber stalkers access to a vast amount of personal information.

Celebrities
These victims are often encountered due to their fame which includes politicians, royalty,
sports stars, actors and singers. Some celebrities attract multiple pursuers. These victims are
tormented by cyber stalkers who have intimacy and incompetency issues resulting in dangers
such as threats, slander and continual harassment.

Secondary victims
These are those victims that are indirectly harmed by the stalking. Secondary victimisation
involves the indirect victims of the cyber stalker and may range from the victims current
partner to family, friends and work colleagues. Family and friends of the victim attract the
cyber stalkers fury if they are portrayed as protecting or brainwashing the victim against
the cyber stalker. Pitarro (Jaishankar & Sankry, 2005) notes that the absence of physical
contact between the cyber stalker and the victim results in police officials dismissing the
victims claims. This behaviour, consequently prompts secondary victimisation (see
Armistead, [sa]; and other such stories at website www.haltabuse.org (Working to Halt
Online Abuse).

SOCIAL NETWORKS AS A RISK OF CYBER STALKING

Contemporarily, online social networking has transitioned from a niche phenomenon, in that
it was only used by a few people, to mass adoption. The massive increase in participation
within these social networks has also seen the development of variation and sophistication of
function and usage patterns across various social networking sites (Gross & Acquisti,
2005:71). Millions of users adapt social network sites into their daily lives as it has become a
lifestyle trend (Boyd & Ellison, 2007:6-9). Through social networking technology, a social,
collaborative and interactive podium has been created for Internet users to interact and
communicate with each other by creating online profiles. Users tend to become more open
when sharing information online via social network sites and thus become vulnerable to
Internet violations (Haron & Yusof, 2010).

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Cyberspace has multidimensional implications for an individuals social identity. An
individual enters cyber space in many different ways by entering a newsgroup or e-mail
discussion group, playing an online virtual game or even just browsing social network sites.
The management of identity is linked to the management of cyberspace (Taylor & Spencer,
2004:235.) In this way, users become their own promoters through the media in order to gain
the publics interest and response. They promote themselves by sharing their opinions
publically through status updates, debating on subjects or matters, communicating with other
authors as well as publishing personal experiences through blogs (see Brooksbayne, 2013).

Cyber stalkers also locate victims through search engines, online forums, message boards,
chat rooms, electronic mail, phone numbers, street addresses or even instant messaging. In
addition, provocative and recognisable photos on online profiles increase individuals
vulnerability to cyber stalking.

Smith (2011) indicates that according to research conducted by the British Electronic
Communication Harassment Organisation (ECHO), social networks are often used as a
channel for harassment and intimidation. More victims reported to having been tracked down
through social networks than on dating sites. The study also concluded that in the case of
cyber stalking, perpetrators were likely to be strangers resulting in unclear motives for the
harassment. There appears to be a general consensus among researchers that although social
networks cannot be identified as the sole cause of cyber stalking; they do facilitate and help
fuel the commission of cyber stalking (cf. Haron & Yusof, 2010).

As already established, stalking behaviour is now, and apart from crimen injuria, (See South
African Law Reform Commission, 2006:20) defined as a substantive criminal act in its own
right. Therefore the following criminal behaviour and subsequent protective measures
contained in legislation regarding cyber stalking are applicable to the South African context.

THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT 25 OF 2002

The Electronic Communications and Transactions Act 25 of 2002 (ECT Act) was drafted into
South African law on 30 August 2002 (South Africa, 2006b). It came about as a mechanism
whereby the government could establish a formal structure to define and regulate e-
commerce in South Africa. The ECT Act has a direct impact on any illegal transgressions
associated with electronic communications, data messages and transactions. It pertains to all
forms of communication such as e-mail, the Internet or short message services (sms), cellular
phones and digital cameras. The Act also functions as an informative and enabling resource
in which concepts are legally identified and defined in order to resolve any ambiguity relating
to e-commerce, (The Institute for Risk Management South Africa (IRMSA), 2005)..

Chapter XIII of the Act, and in particular sections 85 to 89 seek to make the first statutory
provisions or cybercrime in South African jurisprudence. The Act seeks to introduce statutory
criminal offences (cybercrime) relating to information systems and it includes:

unauthorised access to data;
interception of or interference with data;
computer-related extortion;
fraud; and
forgery.

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Cybercrime is defined in terms of item 4 of the Guidelines for Recognition of Industry
Representative Bodies of Information System Service Providers, as:

[A]ny conduct on the Internet or connected with the Internet or Internet usage
which constitutes a crime in terms of the South African criminal law, including
any conduct punishable in terms of Chapter XIII of Act 25 of 2002 (South Africa,
2006a).

In chapter XII and XIII of the ECT Act, provisions are made for cyber inspectors and
cybercrime respectively. With regards to cybercrime the Act attempts to pioneer statutory
criminal offences relating to the following key issues. It addresses unauthorised access to data
such as hacking and trading passwords to commit an offence. Interception (tapping into data
flows) and interference with data (launching virus attacks) all are now seen as illegal. It
challenges computer-related extortion such as fraud and forgery in order to tackle the
unlawful financial gain of offenders through the use of technology. In addition, the Act states
that any person assisting another in the performance of any of the above crimes will be guilty
as an accessory. The penalties involved in such transgressions range from a fine to
imprisonment for a period not exceeding six months (South Africa, 2006b).

THE DOMESTIC VIOLENCE ACT 116 OF 1998

The Domestic Violence Act 116 of 1998 was integrated into South African law in order to
provide protection orders addressing domestic violence and any other matters relating to it. It
recognises that there are high levels of incidents of domestic violence and that it is a social
evil. It also identifies the victims of domestic violence to be vulnerable members of society.
The Act is strictly based on the South Africas Constitution, 1996 which offers the right to
equality, freedom and security (South Africa, 1998).

The Act makes clear provisions for terminology related to domestic violence. It describes a
domestic relationship as one in which two people share a relationship in various ways. These
ways include, marriage (culturally, legally or religiously), living together, joint parental
responsibility, family members, dating, engaged or any intimate or sexual relationship for any
duration of time. Domestic violence includes various abuses such as physical, sexual,
economic, emotional, psychological or intimidation, harassment and stalking. The Act makes
provision for harassment which includes electronic incidences of harassment. It also
addresses intimidation and stalking accordingly. Victims of such acts can apply for a
protection order and the seizure of arms and dangerous weapons belonging to the accused. If
perpetrators violate the protection order they are liable for arrest (South Africa, 1998).

The Act is extensive in guarding the rights of victims of domestic violence. It even goes as
far as including cyber harassment and stalking as a serious misdemeanour against society.
However, the Act is only suitable for people who are or were in a domestic relationship with
the accused. It makes no allowances for victims of cyber stalking perpetrated by a stranger.

PROTECTION FROM HARASSMENT ACT 17 OF 2011

Although the legislation took seven years in the making, it was tabled in Parliament in
February 2010, approved in August 2011 and published in the Government Gazette on 5
December 2011. The Protection from Harassment Act 17 of 2011 was purposively designed
to address harassment and stalking incidences where the assailant and victim do not have a
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25
domestic relationship. This includes stalkers who are neighbours, friends or even strangers
(Hartley, 2010). It has been drafted by the South African Law Reform Commission to bring it
in line with existing norms (Hartley, 2012). In terms of Section 1 of the Protection from
Harassment Act 17 of 2011, harassment means to directly or indirectly engaging in
conduct that the respondent knows or ought to know-

(a) causes harm or inspires the reasonable belief that harm may be caused to the
complainant or a related person by unreasonably-
(i) following, watching, pursuing or accosting of the complainant or a
related person, or loitering outside of or near the building or place
where the complainant or a related person resides, works, carries on
business, studies or happens to be;
(ii) engaging in verbal, electronic or any other communication aimed at
the complainant or a related person, by any means, whether or not
conversation ensues; or
(iii) sending, delivering or causing the delivery of letters, telegrams,
packages, facsimiles, electronic mail or other objects to the
complainant or a related person or leaving them where they will be
found by, given to, or brought to the attention of, the complainant or
a related person;
(b) amounts to sexual harassment of the complainant or a related person.
(South Africa , 2011).

In terms of the same section, harm is defined as any mental, psychological, physical or
economic harm (South Africa , 2011).

Furthermore, Sexual harassment in turn is defined as any:
(a) unwelcome sexual attention from a person who knows or ought reasonably
to know that such attention is unwelcome;
(b) unwelcome explicit or implicit behaviour, suggestions, messages or
remarks of a sexual nature that have the effect of offending, intimidating or
humiliating the complainant or a related person in circumstances, which a
reasonable person having regard to all the circumstances would have
anticipated that the complainant or related person would be offended,
humiliated or intimidated;
(c) implied or expressed promise of reward for complying with a sexually
oriented request; or
(d) implied or expressed threat of reprisal or actual reprisal for refusal to
comply with a sexually oriented request (South Africa , 2011).

As conveyed by Radebe (2010), the Act enables the law to deal with stalking by a means of a
swift, easy and affordable civil remedy in the form of a protection order.

A key component of the Act is that it attempts to cover all forms of harassment. Although the
concept stalking is not defined in this Act, it is acknowledged in terms of the Domestic
Violence Act 116 of 1998. Section 1 (2) of the Protection from Harassment Act 17 of 2011
states that This Act does not prevent a person who may apply for relief against harassment
or stalking in terms of the Domestic Violence Act, 1998 (Act No. 116 of 1998), from
applying for relief in terms of this Act while Section 10 (5) (a) of the same Act reads that a
complainant who is not in possession of or not in the process of applying for a protection
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26
order against harassment or stalking as provided for in the Domestic Violence Act 116 of
1998), a court may not refuse to issue a protection order or to impose any condition or make
any order which it is competent to impose or make in terms of this section, merely on the
grounds that other legal remedies are available to the complainant. It is the contention of the
authors that a similar meaning should be attached to the concepts harassment and stalking in
terms of the Protection from Harassment Act 17 of 2011 and the Domestic Violence Act 116
of 1998 respectively. The social construct of stalking is obviously preferred for the purposes
of this article and to equate the behaviour previously explained with that of cyber stalking
described in international and local literature.

The Act, therefore, recognises that former legislation regarding stalking did not make
provision for cyber stalking resulting in the act of cyber stalking going largely without
censure or sanction. Accordingly, the Act includes cyber stalking as a criminal offence
making it easier to prosecute. Courts now have the authority to consider whether reporting or
posting damaging content online can be constituted as harassment (The Organ Harvester,
2009).

The Act contains a mechanism in which a victim of cyber stalking can apply to the court for
an interim protection order against harassment even if perpetrated by a stranger. In addition,
the courts are allowed to issue instructions to the South African Police Service (SAPS) to
assist applicants in tracing the identity of the cyber stalker (The Organ Harvester, 2009).
Radebe (2010) further elaborated on this by explaining that not only does the Act permit the
assistance of the SAPS in determining the identity of the perpetrator but also makes
provisions for discretionary powers in terms of which police officials can assist victims of
stalking, trace and identify their harassers even before they launch an application for a
protection order. Previously, the police were restricted as they did not have the powers to
investigate complaints of stalking if no criminal action can be proven. This Act now creates
liberty for this investigation to be undertaken.

The protective measures instituted in the legislation maintain that a protection order can be
issued instructing the harasser to end the harassment (Radebe, 2010). If the harasser breaches
the order, he or she will be guilty of an offence. The legislation also provides, in certain
circumstances as adjudged by the courts, for the issuing of an interim order without the
knowledge of the harasser. A victim of cyber stalking is allowed to apply to a court for an
interim protection order even if the harasser is unknown. Accordingly any person going
against a condition of a protection order may then be convicted of an offence, and have a fine
or a period of imprisonment not exceeding five years imposed.

CONCLUSION

Cyber stalking is a social phenomenon entailing various potential consequences related to
social pathology and criminal behaviour. It is a phenomenon that is still relatively unknown
in the South African context pertaining to its nature and social dynamics. In this article the
authors clarify the meaning of stalking and cyber stalking in order to provide a clear
understanding of the nature of cyber stalking and its contextualisation within the larger milieu
of stalking and harassment per se, thereby facilitating more insight into the dimensions and
complexity of cyber stalking.

Apart from the fact that online stalking thrives on the increasingly innovative application of
technology in modern society that renders cyber stalking difficult to combat, it has
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27
multidimensional implications for an individuals social identity. Determining the level of
harm suffered by victims is an intricate process and the true damage is difficult to measure as
it ranges from psychological trauma, as well as physical and emotional reactions.

The profile of the offender is complex in nature as they are a new breed of criminals who are
on an earnest mission to poach their prey. Victims of cyber technology deserve to be
protected against cyber stalking. Consequently, stalking behaviour is now established as a
substantive criminal act in its own right, although it took significant legislative demarcation
and clarification to enhance the efficacy thereof.

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