The Bill of Rights

Doxing: Freedom of expression versus hate speech

The Bill of Rights in the world-renowned South African Constitution entrenches the right to freedom of expression. As the Constitution enshrines the rights of everyone in our country, freedom of expression extends to all persons in South Africa. This human right includes:

>     freedom of the press and other forms of media;

>     freedom to receive or convey information and ideas;

>     freedom of artistic creativity; and

>     academic freedom and freedom of scientific research.

It is important to observe that the rights in the Bill of Rights can be subject to limitation in certain instances. Consequently, the right to freedom of expression does not extend to:

>     propaganda for war;

>     incitement of imminent violence; and

>     advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm.

What is Doxing and is it a form of freedom of expression?

>     Doxing is defined as the act of revealing information about someone on the internet usually in a quest to harm the person whose information is disclosed. While doxing can be used as a mechanism to harass and intimidate people, it is often also used as a tool for activism. In the process of doxing, an individual's personal information can be released to the public due to their actions or declared beliefs being harmful to the general public. The publication of the individual's personal information has the effect of removing the anonymity that fosters the behaviour causing a disintegration of social cohesion.

>     However, doxing could prejudice those whose actions do not pose a threat to society but simply elect to not conform to social norms. It is evident from this that for doxing to fulfil its intended purpose, it must expose wrongdoing that can be viewed as a matter of public interest.

>     The constitutional right to freedom of expression may include imparting information and ideas, but it is limited where one's actions or words advocate for hatred based on the grounds set out in section 9 of the Constitution, or where the information is used to incite harm.

 What does the Protection of Personal Information Act 4 of 2013 (“POPI”) say about doxing?

>     The POPI Act excludes the processing of information for journalistic, literary, or artistic purposes from its application in order to strike a balance between the right to privacy and the right to freedom of expression. POPI does not apply to the processing of information for purely personal or household activities. Personal information must, however, be processed lawfully and in a reasonable manner that does not violate or disregard the privacy of the individual whose information is processed. Personal information should only be disseminated if it is adequate, relevant, and not excessive considering the purpose intended to be achieved using the information.

>     If the information disclosed was available on a public platform before doxing was employed, publishing it may not be considered a breach of the right to privacy. The act of doxing can, therefore, be determined to not be illegal in those circumstances. However, if the information was not made public prior to doxing, without a legal justification for the circulation thereof, the act would constitute a violation of the targeted individual's right to privacy. The purpose of the POPI Act is to ensure that all the rights in the Bill of Rights are observed and balanced where there may be a conflict of two or more rights as in the case of the rights to privacy and freedom of expression.

 Identifying hate speech through doxing.

>     Hate speech refers to abusive or threatening speech or text that transmits prejudice or bias on the basis of race, ethnicity, religion, sexual orientation and similar grounds. Doxing can be employed as a means of uncovering hate speech by making the publisher's identity known to the public, and possibly making them vulnerable to legal sanctions or social exclusion. Imminent threatening conduct can be curbed through doxing, whereas such conduct would otherwise be overlooked. On the other hand, it is not justified to cavalierly release personal information about someone that would make it easy to locate them, which could result in the physical harm of such a person. Targeting/targeted doxing, as it is known, creates the risk of vigilantes physically harming the individual whose personal information has been revealed. 

>     Doxing used to deanonymise a proponent of hate speech may be justified as it is clear from the provision for freedom of speech in the Constitution that no one may abuse the right by advocating for hatred on unjustified grounds or to incite violence against another. By removing that person from obscurity and making them identifiable, legal action can be pursued with the purpose of preventing the publisher from further circulating information identified as hate speech. In another instance, doxing can be used to spark doubt about the credibility of an identified person by revealing their personal information. This is known as delegitimising doxing. A tool that would be useful where the identified individual uses their online presence to perpetuate misinformation about socio-economic issues, for example.

 Is doxing illegal?

>     There are forms of doxing, particularly targeting doxing, that can be interpreted as cyberbullying. This could result in a sanction in the form of an interdict or protection order against the person publishing the information as they would have acted in contravention of the Protection from Harassment Act 17 of 2011 or the Cybercrimes Act 19 of 2020, amongst others. It is equally important to tread carefully where the personal information intended to be shared on a public platform did not already exist thereon. If no sound reason for publishing the information can be provided, the act could warrant a legal sanction.

>     Depending on the circumstances, criminal charges may be levelled against the person using doxing to reveal the identity of another. For instance, if doxing culminates in the physical intimidation and harm of the targeted individual, it would amount to the offence of intimidation in terms of the Intimidation Act 72 of 1982, or even assault. A charge of crimen injuria may also be brought for injury inflicted on the dignity of a victim of doxing. Civil claims for pain and suffering may be instituted by a victim of doxing if the tool is abused by the publisher of their personal information.  

>     It stands to reason that whenever there is an inclination to reveal someone's identity for the purpose of stopping the spread of hate speech, to locate a debtor, or for any other sound cause, it is crucial to refrain from adopting targeting doxing as a mechanism for such a purpose as it may result in backlash against oneself and defeat the intended purpose. It is advisable to seek legal advice before engaging in this form of vigilantism.

Did you know… Doxing used to remove someone's anonymity is referred to as deanonymising doxing.