The ever-increasing drive to take part in the fourth industrial revolution and the increasing use of social media by the public has increased the risk of cyber harassment and the risk of falling victim to this specific type of crime.

The most frequently asked question on social media pertaining to this type of crime is, “Do victims have protectable rights and if so, what remedies are available to victims to protect them against cyber harassment?”

The answer to the first question is that victims indeed have rights and these rights include the victim's right to privacy and the victim's right to protect his or her dignity and integrity against cyber harassment.

The answer to the second question is also affirmative, but before 27 April 2013, a victim was forced to approach the High Court for protection by means of applications. These applications normally entailed Anton Pillar applications and/or applications for interdicts against the perpetrator to remove the degrading imagery and/or comments as well as to interdict the service providers to provide IP addresses of the perpetrators and to prevent the perpetrator from proceeding with the harassment. Unfortunately, these applications are very expensive due to the fact that the victim could only approach the High Court and had to utilise the services of IT specialists, as well as an independent attorney to oversee the fairness of the application process. Furthermore, the legislation promulgated at the time was not specifically formulated to prevent cybercrime and left the victims without effective civil or criminal recourse.

The void caused by ineffective legislation forced the legislator to draft the Protection from Harassment Act, 17 of 2011 which came into effect on 27 April 2013.

The definition of the term “harassment” in the Act includes cyberstalking and electronic communications that may cause harm. The Act makes provision for victims of cyber harassment to approach the Clerk of the Magistrate's Court where the harassment took place or where the victim resides or works for an interim protection order and can approach the Clerk of the Court without legal representation.

The order has effect from the date on which the interim order is granted and allows the perpetrator the chance to provide reasons to the court why the interim order should not be made a final order. The Act makes provision for the service of the interim order by sheriff or any peace officer and the onus to ensure service falls on the Clerk of the Magistrate's Court and not on the victim.

The Act further makes provision for the court to impose any conditions to the order that might be necessary to ensure the safety of the victim, which might also include provisions that the victim's residential address be deleted from the order served on the perpetrator.

The Act further makes provisions for orders to allow victims to obtain factual evidence to allow for positive identification of the perpetrator, which was previously very costly and difficult to obtain. The Act places an obligation on internet service providers to provide any information necessary to identify the perpetrator in question.

The Act further stipulates that the court might order an investigation into the identity of the perpetrator and can empower the SAPS to obtain the identity, physical and IP address of the perpetrator.

The Act reduces the victim's onus of proof by means of a presumption that the perpetrator's actions caused harm to the victim and that the perpetrator should have known or foreseen that his actions would harm the victim, in so doing the burden of proof is shifted from the victim to the perpetrator to prove the contrary.

These provisions clearly confirm the Legislator's intention to assist victims of cyber harassment to bring perpetrators to justice in a quick and cost-effective manner.

The provisions in the Act clearly relieves the victim's burden of proof and further relieves the burden of the service of pleadings on the perpetrator.

The Act clearly improves the victim's chance of proving their claim for damages in civil proceedings
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The victim, however, still needs to prove that the cyber harassment caused fear, physical, psychological or emotional harm.

In cyber harassment matters, the standard delictual objective reasonable victim test is utilised.

Although the promulgation of the Protection from Harassment Act did improve the plight of victims of cyber harassment, further development will be necessary in the future due to the increasing development of electronic communication and the ever-increasing usage of social media by members of the public.

In closing it is important to note that although the Act makes provisions for a cheap and fast application process that can be instituted without legal representation, it is important to note that cyber law and cybercrime still constitutes a specialised field of law and it is recommended that victims of cyber harassment should seek the assistance of a legal representative if they can afford it,  to assist them in their application process and with the drafting of pleadings in civil action against the perpetrator to recover damages caused by cyber harassment and to further assist the victim in lodging criminal charges against the perpetrator, where applicable.