Don’t film yourself having sex

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This excerpt from Don’t Film Yourself Having Sex and Other Legal Advice For the Age of Social Media has been published with permission from Penguin Books SA and is available from all leading stores.

About the book:
In the digital age you can get into serious legal trouble at the click of a button.

The shift from passive Internet user to active digital citizen has brought about unprecedented levels of online interaction, creation and connecting.

But as people begin to share more and more about themselves and their lives on social media, they are finding themselves getting into trouble for what they say and do online.

Emma Sadleir and Tamsyn de Beer, who together run one of South Africa’s leading social media law consultancies, point out the social traps and legal tangles that you could find yourself facing as you navigate the murky waters of the digital age.

In a fun, witty and easily accessible way, this ground-breaking book details the legal, disciplinary and reputational risks that you, your company and your children face online.

By outlining the laws and rules applicable to what you do and say on social media, and providing practical and common sense advice, Don’t Film Yourself Having Sex ultimately shows you that in order to reap the extraordinary benefits of digital technology without succumbing to its risks, you need to start practising responsible digital citizenship.

Excerpt as follows:

Picture the scene: you finish reading this book and, feeling inspired to exercise a bit of online reputation management, you google your name. Up pops a link to your Facebook page, your Twitter account, and your LinkedIn profile.

You feel chuffed, because you’ve never uploaded anything remotely objectionable and look super professional and sober in your profile picture. You self-five yourself for being responsible and awesome.

Your parents would be so proud.

But then you see that the next four pages of the Google search results are filled with links to a video of you and your ex-boyfriend having sex, all over porn-sharing sites, with your full name and the name of your employer tagged.

You never consented to being filmed, and you are (obviously) mortified. Desperate to not have the matter revealed to the world in public court documents, your only option to escape this nightmare is to change your name.

We wish that this were some horror story that we made up to scare you, but sadly, it’s not. This happened. In South Africa.

When private content goes public

Now we should point out that there is nothing illegal about filming yourself having sex, or sending naked pictures of yourself to someone, provided that it is consensual and everyone is of age.

In fact, some people encourage it (although you may have gathered from the title of this book that we are not those ‘some people’).

The problem arises, however, when that sexy video that you made to keep the spark alive suddenly falls into the wrong hands and your intended audience of one turns into an audience of billions.

And because digital images and videos can be so easily shared, the chance of this happening is all the more likely.

Here’s how:

1. The device on which it was recorded or stored could go AWOL

These things happen. Phones get lost, cameras are stolen, laptops get hacked into, and that private video is suddenly not so private any more.

This was the case in 2008, when the mobile phone of a British university student, containing personal and explicit images with her face clearly visible, was either lost or stolen.

The images were subsequently made available for download on a Swedish website, indexed so that the link to the files was at the top of the list of search engine results for searches of her name.

In the end, the UK High Court awarded an interim injunction against ‘Persons Unknown’, preventing all persons from distributing the images.

2. You could be dating or married to an awful human being

If you are filming yourself having sex (stop it immediately!) or sending naked pictures of yourself to someone (ditto!), hopefully it is with or to someone you trust and who respects your privacy.

But there are some horrible people out there who think these sorts of things deserve to be shown to their friends. And then their friends think that they deserve to be shown to their friends. And before long … well, you get the picture.

3. It could go into The Cloud.

Don’t ever let it go into The Cloud

We wish we could explain to you what The Cloud is but, honestly, we don’t understand it. We think The Cloud is a bit like a unicorn – a mythical Internet server, filled with mythical Internet fairies, where everything you’ve ever done is stored and where privacy goes to die.

In the simplest terms, what The Cloud means is that if a video is taken on your cellphone, it will appear on your tablet and your laptop and every other device connected to your Cloud.

Everything is in The Cloud. The Cloud is terrifying.

4. Revenge porn

We know that you love your boyfriend/girlfriend/husband/wife now. We’re sure they’re really lovely and that you call each other ‘Boo’.

But if, for whatever reason, your relationship falls apart (our commiserations), the fact that your ex-boyfriend/girlfriend/husband/wife has access to a video of you having sex, or a picture of you naked, has the potential to turn into your worst nightmare.

This is that scary scenario that we mentioned at the start of the chapter, known as revenge porn. Humiliation at the hands of a spurned lover who posts online, for all the world to see, one of your most intimate moments.

There are numerous websites set up for this very purpose, most notably www.texxxan.com (now, thankfully, shut down) and www.myex.com (unfortunately still going strong, operating under the super-classy tagline ‘Get Revenge! Naked pics of your Ex’).

It is an egregious violation of your privacy and your trust, and there are of course legal remedies available to you:

-It no doubt amounts to a violation of your constitutional right to privacy.

-It could potentially amount to harassment.

-Many websites require payment in order to take the picture or video down – this is extortion.

-If you took the picture or video yourself, the online publishing of that picture or video by someone else is a breach of your copyright.

There are also a few countries that have specific laws dealing with revenge porn, including the US states of New Jersey and California, France, the Philippines, the Australian state of Victoria, and Israel, the first country to classify revenge porn as a sex crime.

But really, is that enough? Firstly, even if your rights have been violated, it is often difficult to get pictures or videos taken down because the majority of these websites are based abroad.

Secondly, the launching of a legal action against the perpetrator just breathes air into a matter that you desperately want to bury.

But most importantly, the reputational harm suffered as a result of a sex video or naked picture being shared online is so damaging that no legal victory will ever truly undo the harm suffered.

So to avoid any of it, just don’t film yourself having sex.

And don’t send naked pictures of yourself to anyone. If you want to spice up your relationship, do it somewhere where technology can’t find you, or if you insist, at least make sure that your face and genitals are not visible in the same frame.

And if you think none of this bad stuff is going to happen to you, you should know that when you come crying to us in a year’s time about how your life is ruined, we’re just going to say, ‘We told you so!’

Because we did. It’s in the title!

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