'Critical precedent' set as Meta avoids contempt ruling
A settlement agreement made an order of court on Friday sees Meta Platforms, the owner of Instagram and WhatsApp, required to release information about who was behind accounts to which graphic child pornography was posted.
The Sunday Times reports that the Digital Law Company (DLC), which had been litigating all week to protect the schoolchildren, said it was ‘the first time in SA legal history that a global tech giant has agreed, in writing and in court, to these kinds of terms’.
TimesLIVE reports that the agreement came in the face of an application for contempt of court that could have seen Meta official Thabo Makenete at risk of being sent to prison if Meta failed to comply with a new Saturday deadline.
Michael Power, MD at public interest law firm Power Law Africa, said the settlement is significant.
‘That a big tech company consented to the jurisdiction of a SA court is an important legal development,’ he said. The content that was being uploaded was ‘shocking’, said the DLC’s Emma Sadleir in court papers.
Alongside explicit photos and sex videos of schoolchildren was ‘devastating’ personal information – including allegations some of them were HIV-positive – that identified both individuals and schools, she said.
In terms of the settlement agreement, Meta and WhatsApp must, to the extent this is ‘technically feasible’, also remove the offensive profiles and channels, which were listed in the order. There were many of them, and there are deadlines for their removal.
Perhaps the most important part of the settlement agreement was the portion that sets up what Sadleir called a ‘hotline’ – a mechanism whereby, if similar content emerges in the next two years, the DLC will be able to report it directly to Meta and WhatsApp’s lawyers.
Meta and WhatsApp would then review the content and take action ‘as soon as practicable, but not later than 48 hours’ after having been informed of it.
As previously reported, DLC brought an urgent application and obtained a court order a week ago.
On Wednesday the DLC applied to court to hold Meta and one of its officials in contempt of court. By Friday there was an agreement.
Quoting Nelson Mandela, the DLC’s counsel, Ben Winks, told the court on Friday that both sides agreed that ‘our children are our greatest treasure ... (and that) those (who) abuse them tear at the fabric of society’.
The Sunday Times notes that Monday’s order and Friday’s agreement are not identical. One difference is that Monday’s order required Meta to permanently disable the creators of the pornographic content from opening any new Instagram profiles or WhatsApp channels. There is no similar order in Friday’s agreement.
This may be because complying with such an order is practically challenging.
Aldu Cornelissen, from market intelligence firm Murmur, said it was ‘almost impossible from the tech side’ to prevent someone opening new Instagram or WhatsApp accounts. All that was required to open one was a phone number or e-mail address.
Meta or WhatsApp could disable a phone number or e-mail address, but ‘unless you catch the physical person, he or she can buy a new phone that has not been through the Rica process or use a new e-mail address and start all over again’.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
