Be wary when taking child photos
Parents should be careful not to expose their children’s genitals when taking photos of them and posting them to social networking sites.
It was recently reported in the national media that it is now illegal to post naked photos of your baby or child on such sites.
Dino Montepara, director at Malherbe, Rigg and Ranwell, says the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 makes it an offence to expose or display child pornography, whether for sexual gratification or not.
In terms of the Act “child pornography” means “any image, however created, or any description or presentation of a person, real or simulated, who is, or who is depicted or described or presented as being under the age of 18 years, of an explicit or sexual nature, whether such image or description or presentation is intended to stimulate erotic or aesthetic feelings or not, including any such image or description of such person unduly displaying the genital organs or anus of such person”.
Montepara says it also includes ‘showing or describing the body, or parts of the body, of such person in a manner or in circumstances which, within the context, violate or offend the sexual integrity or dignity of that person or any category of persons under 18 or is capable of being used for the purposes of violating or offending the sexual integrity or dignity of that person, any person or group or categories of persons.
He therefore says it is an offence to post pictures of an explicit or sexual nature including a child’s genital organs or anus on social media or any part of a person’s body in a way that would violate or offend the sexual integrity or dignity of that person.
According to him, if the image is not of an explicit or sexual nature or does not show the child’s genital organs or anus or the body part of a person that would, within the context, violate or offend that person, it cannot be a criminal offence.
“For that reason I do not believe that a picture of your baby in a nappy or completely covered in bubbles would be considered a violation of the legislation.”
Montepara adds that as one can see from the definition of “child pornography” it does not decriminalise the conduct if it is done without ill intentions.
“The conduct remains a criminal offence. If a person is found guilty of committing a sexual offence in terms of the Act they will be liable to a conviction in terms of the Criminal Procedure Act.
“Likewise, a person who has knowledge of a sexual offence being committed against a child and fails to report it to the police is guilty of an offence and liable to imprisonment for up to five years,” he says.
He adds that other than relying on members of the public to assist in laying charges against offenders of the legislation, he is not sure as to how the National Prosecuting Authority intends to monitor violations of the legislation.
“I am not aware of any matters where they have laid any criminal charges against individuals for posting pictures of children on social media contrary to the provisions of the Act,” he says. – @CarmenBoksburg
