What happens when someone refuses to take down a #MeToo post despite legal action?

Following South Africa’s watershed moment of naming and shaming rapists as part of the global #MeToo movement – an event that is now notoriously referred to as ‘The List’ – more and more South African women have become open to the idea of sharing their past experiences online. 

One such woman is South African model and TV presenter Lerato Moloi was arrested last week for being in contempt of court.

This after she was served with a court order to remove a tweet detailing her alleged #MeToo experience after one of the three men she named, comedian Mongezi “Tol A$$ Mo” Ngcobondwane took legal action.

The court order obtained by Ngcobondwane in the Vereeniging Magistrate’s Court dictated that the tweet was to be removed 24 hours after the order was handed down.

Moloi refused to comply and was therefore found to be in contempt of court. 

Despite all this, the model is adamant that she will not be intimidated or silenced. 

Her stance is unlike that of the countless women who complied with court orders for fear of being the ones prosecuted over their alleged rapists. 

And if she emerges victorious, this could tip the scales for women who are threatened with legal action for speaking up. 

This begs the question, what next? What happens to someone who is found in contempt of court and what happens if someone refuses to take down a potentially defamatory tweet? 

According to advocate Mohammed Desai: “If a person has been declared in contempt of court and still refuses to ‘take down’ the comment, the following routes may be pursued. Section 77 of the Electronic Communications and Transactions Act, act no. 25 of 2002, allows for a ‘complainant’ to write to a ‘service provider’ requiring the service provider to ‘take down’ material which is the subject of unlawful activity.”

“The aggrieved individual may also approach the courts, acting under common law, to interdict the host of the service from continuing with defamatory statements, which would be unlawful.”

So the complainant would then have to approach the platform on which the comment or allegation was posted and ask them to comply with the court order. 

Additionally, Desai explained that during defamation proceedings, the plaintiff or applicant sues for an apology from the defendant or respondent and may be granted such relief.   

The advocate further explained that the Cybercrimes Bill, which has not been promulgated into law at this juncture, also allows for an urgent ex parte application to be made to the Magistrate’s Court, pending criminal proceedings to:

(a)  prohibit any person from further making available, broadcasting or distributing the data message contemplated in section 16, 17 or 18 which relates to the charge; or

(b)  order an electronic communications service provider or person in control of a computer system to remove or disable access to the data message in question.

In the event that a defendant still refuses despite being found in contempt of court, they may face jail time or a fine, but the offending post would still remain. It is currently unclear what the amount of the fine or the length of the jail time would be.

According to GoLegal, contempt of Court is divided into two categories namely, civil contempt and criminal contempt. 

“In terms of the latter instance, disgrace is brought upon the Court’s moral authority. In terms of civil contempt of Court, an action of disobedience is displayed. Therefore, the separation of the two forms of contempt lies in the conduct of the contemnor and the resulting ‘effect’ it has on the particular Court. This clarification ensures that any notion whereby it is thought that criminal contempt is a crime and civil contempt it not, is now dismissed.”

Alternatively, the defendant could try reporting the tweet on the Twitter platform using one of the platform’s many options to classify a tweet they believe is going against Twitter regulations. A Twitter employee would then look over the tweet and classify it as going against Twitter rules, in which case it would be removed or the account would be suspended or the tweet could be deemed perfectly fine and it would remain published.

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