…So I have the coolest friends in the world – true story. I always knew this, but a recent antic I got up to solidly confirmed this for me.

See, very late one night I accidentally sent a picture of my knickers to a whatsapp chat group that I am part of. The trouble stemmed from a recent update of whatsapp. With the update, when sending a picture from an iPhone, you select the picture, then you select the recipients. The name of the person who I wanted to send the picture to was on top of the list and group chat name was immediately under the name of the intended recipient, because I had communicated with the group shortly before chatting to this person. I selected the intended name, but my finger trailed and I accidentally selected the group chat as well. It was a mistake. Anyone who saw the picture would immediately recognise that if it was not intended for them. I suspect at first it must have seemed like a random picture without knowing the context.

The really interesting thing is though, I am positively sure if a 4 year old saw the picture, the child would think nothing of it. Yet the older you are, a natural phenomenon is that one’s imagination becomes more vivid due to one’s experience. An older person would start trying to contextualise that picture.

So this picture in question was of a black pair of lacy knickers (looked like the shape of a figure of eight), lying on a tiled floor. In the bottom right corner of the picture you can see three toes and a quarter of someone’s foot – but it’s clearly not my foot due to the colour of the skin. In the bottom centre, a finger shaped object that looks like the arm of aimg_3055 chair. And that was all that was in the picture.

Not pornographic. Very suggestive…possibly, if you let your imagination go. If you are inclined to let your imagination go, like my dear friends are, you might describe it as erotic#7, as they did. I do see how “mistake picture” could make many people uncomfortable. Not everyone has as much confidence as I have. Heck, two years ago I posted a pic on Facebook wishing all my South African friends Happy Heritage Day. By my standards the picture on the right here, which is on Facebook, is more risqué than the “mistake picture” on whatsapp – but again I guess it depends on each person’s comfort level.

Be that as it may, immediately after I sent the picture, and realized what happened, I regretted it. The horror struck me in the moments that immediately followed.  I was emotional and terribly upset. I could not retract the picture. It was meant to be sent to one person only, but all the people in the group chat got it as well. But what was done was done.

The next morning shock was still setting in. No one on group chat had responded to the picture in the whatsapp group except one person from the group messaged me personally. Her exact words was “Bronwyn! WTH, the picture on **** chat?”. I responded by saying “Sorry it was a mistake”. She did not reply. I felt really bad, but shortly after that my friends rallied around me.

Now my friends…they are incredibly honest. First they said “Oh Dear! What have you done?” Then two and a half seconds later they started laughing and chirping me about it. The following day, when I saw them the first thing they asked me was “So do you at least have your knickers on today?” They have a knack of making light of the gloomiest situations. One friend admitted her own thoughts. She said she thought “I’ve gotta be there for Bronz….. Let’s think…. What would Margaret do?” This comment had us in fits and tears of laughter. To get that joke, one needs to know the story of Margaret and Chris van Wyk who were in a very similar situation. They’re a married couple and Margaret thought she sent Chris an intimate picture of herself, but she actually sent it to a whatsapp group of school moms.

As we joked about it, I felt better and better. They teased me and asked 1001 inappropriate and ridiculous questions about the picture. They offered me first prize for being the village idiot and then told me their lives would be so terribly boring without my stunts. 48 hours from the moment picture was mistakenly sent, because we joked about it, my confidence started returning in a big way and stronger than before. I made the decision to “own my picture”. The advice one of them gave me was Bronz strut it off”, and that’s what I’m doing

The reason why I think the way that I felt 48 hours after the event is significant, is because 24 hours after it I was probably at my lowest. For about 15 hours after I posted the picture, no one in the group chat said anything on the group. Then one person finally broke the ice with “Bronwyn!?” to which I replied “Oh dear, my bad. Sorry guys. Wasn’t meant for you”. That person replied with a thumbs up and I thought that was wonderful. It was a relief – case closed. However it was not case closed.

A mere 3 hours later, head person in the group chat left the group chat. Shortly after that the group chat administrator told everyone in the group that she would be removing everyone from the group and delete the group to remove unwanted media. Clearly this was a response to my picture. I feel that not only was it an overreaction which drew more attention to the picture, it also did not remove unwanted media. The only way to remove a picture from that was sent, mistakenly or otherwise, to someone’s mobile device is for that person to delete it from their device.

I guess they didn’t know that. I’m sure they know now, because whomever wanted the picture deleted from their mobiles would have had to do it manually. I am part of their new whatsapp group chat, but the entire chat of the old group is still on my mobile.

So this leads me to the interesting question that I have been pondering about since my own Margaret incident. My question is what liability do I have and what liability does anyone who accidentally received my picture have?

So I did a bit of quick reading. Please know I’m not a legal expert but reading a little more on Margaret’s case I found that News24 (2016:online) reported to have spoken to an associate attorney at Willem de Klerk Attorneys, Mr Hugo Homann about it. Mr. Homann said the people who shared the picture have some measure of liability. A second law expert they spoke to, Mr Ryan Ishmail from RC Ishmail Attorneys confirmed this saying if a person intentionally sends a photograph like Margaret unintentionally did, he or she could be charged with “flashing” under section 9 of the 2007 Criminal Law Amendment. I somehow don’t think a picture of my knickers constitutes flashing.

Mr Ishmail did however also state that the whatsapp group members could be charged with crimen injuria, which is unlawfully, intentionally and seriously impairing the dignity of another if they were to repost Margaret’s picture.

The Citizen (2016:online) confirms News24 (2016:online)’s report and stated that media experts they’ve consulted have said that the anyone who publicised her private photo would “definitely infringed her dignity … and her privacy”. Such individuals could face liability under the law. They added that would include anyone on social media who subsequently reposted it. They explained that the law makes it clear that if one republishes any statement or image that is slanderous, libellous or otherwise unconstitutional, one can still be held accountable for that, even though the publication of the content is second-hand.

Finally The Citizen (2016:online) reported that an expert they consulted from Shepstone & Wylie, Verlie Oozthuizen advised that in Margaret’s shoes, he would approach the police and lay a charge of crimen injuria “against the person who made the initial posting”. However, it would not necessarily stop there alone, as the thousands of people who subsequently reshared it could also face charges, though “down the chain [liability] becomes less and less strong”.

Very interesting indeed.

We staying in a changing society where the rules are grey and the lines are still blurred. We use our personal phones for work and other reasons. At many organisations, societies, schools and clubs people are expected to be part of communication groups – the predominant brand being whatsapp. Using a private devices for professional reasons exposes us to the real risk of unintentionally sending a message like I did.

It is not unusual to send someone a message by mistake. In most cases it’s unimportant and insignificant. But what happens if it is something more serious?

How clued up are we when it comes to dealing with such incidents? These will no doubt become more prevalent. I know that I know very little. Judging from their response to my mistake picture, the people who are in the chat group I’m part of know even less. And you?…….

References:

News24. 2016. Margharet van Wyk’s privacy was invaded – law expert (online) Available from: http://www.news24.com/SouthAfrica/News/margharet-van-wyks-privacy-was-invaded-law-expert-20160826 (Accessed 1 December 2016)

The Citizen. 2016. Margaret van Wyk goes out in public for first time (online) Available from: http://citizen.co.za/news/news-national/1267214/whatsapp-vagina-mom-goes-out-in-public-for-first-time/ (Accessed 1 December 2016).

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