“Sexting” like the word “selfie” has become very colloquial and everyone seems to know the meaning but are children under the age of 18 aware that sexting could get them jail time?

Sexting, which refers to “the sending of sexually explicit photographs or messages via mobile phone” has become very popular; however, the repercussions of this new craze has not been accurately explained to the public.

With regard to under 18s, as soon as a child takes an explicit picture of themselves e.g. on a mobile phone, they are contravening the provisions of the Films and Publications Act, No. 65 of 1996 (“the Act”).  This is due to the fact that the Act prohibits anyone (even the child him or herself) from publishing child pornography. Therefore, as soon as the child has the explicit picture of him or herself on their mobile phone, it is regarded as child pornography and it would not even have had to be passed on to someone else.

The Welkom Magistrates’ Court recently took a harsh approach to a child that distributed inappropriate pictures of herself to a male friend. She was given a 3 year suspended sentence by the Court and may have her name added to the sexual offences register.

If explicit pictures of someone over 18 are distributed without that person’s permission, our law says that the subject of the photograph can take action against the person distributing it based on a principle called injuria (the Latin term for  ‘unlawful, intentional and serious harm to the dignity of another’). They could also use the argument that it is an invasion of their privacy and thereafter, seek a court to order that the photos not be distributed any further and withdrawn from any use.

Therefore, when it comes to distributing certain images, there are not only criminal implications but copyright implications too, and it is always advisable to obtain the necessary permission prior to distributing such images.