By Illeonah Chivenge
South African YouTubers have joined the trending hypothesis game known as Smash or Pass. It’s a game played to discuss and pass judgement on the sexual desirability of people from their videos or pictures. These videos and pictures are usually sourced from the social media sites of the Smash or Pass contestants who are usually unaware that they have been entered into such a game or that their images are being used, without their permission, in YouTube content creation.
The ‘“unaware” contestants can be celebrities, community members or schoolmates.
Although this type of content creation seems harmless and garners a lot of views for the YouTube channel, the game in itself legally constitutes sexual harassment through social media.
These YouTubers could find themselves defending a sexual harassment lawsuit or defending harassment charges for rating people’s sexual desirability on the basis of their looks.
In ancient Rome, sexual harassment was defined as accosting, stalking and abduction.
Attempted seduction, obscene speech, dirty jokes, foul language and clamour are classified as accosting. Sexual harassment is regulated by the Constitution, the Code of Good Practice, the Protection from Harassment Act, the Criminal Law (Sexual Offences and Related Matters) Amendment Act, the Labour Relations Act and the Employment Equity Act.
The Labour Relations Act and the Protection from Harassment Act define sexual harassment as inappropriate and unwelcome sexual remarks or physical advances in the workplace or in a professional or social situation.
Sexual harassment may be verbal, non-verbal or quid pro quo (something for something). Verbal sexual harassment includes unwanted and unwelcome sexual teasing, sexual innuendos, sexual jokes, sexual comments about a person’s clothing, anatomy or looks and asking about a person’s sexual fantasies, preferences or history.
Sexual harassment through social media games like this one amounts to a violation of the right to privacy and the right to dignity. In the digital age, one can never completely delete something off the Internet. This type of sexual harassment has dire negative effects on the victims.
YouTubers participating in the Smash or Pass game fall under street harassers. Street harassment is performed in public by strangers in a verbal and non-verbal manner through remarks or conduct that is frequently sexual in nature by commenting on the victim’s physical appearance in public. A single act – one YouTube video – can constitute sexual harassment if the victim has made it clear that they considered the behaviour or comments offensive.
YouTubers will not be able to successfully rely on the defence that they were unaware that the game constituted sexual harassment.
Many unwitting contestants in the Smash or Pass game are unaware of their legal rights or of the legal avenues to take once they have been sexually scrutinised for views and likes.
The victim may sue the YouTubers for sexual harassment or apply for a protection order. Some YouTubers are riding the wave of a trending game and are also unaware of the legal repercussions of their actions. It’s important for both parties to know the law and to understand it as it applies to YouTube content creation.
Illeonah Chivenge is a Master of Laws Candidate, University of KwaZuluNatal.
The Star