‘SMASH OR PASS’ AS SEXUAL HARASSMENT

South African YouTubers have joined the trending hypothesis game known as ‘Smash or Pass’. It is a game played to discuss and pass judgment on the sexual desirability of persons 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, other community members or schoolmates.

Although this type of content creation seems harmless and gunners a lot of views for the respective YouTube channel, the game in itself legally constitutes as 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, fowl language and clamor were classified as accosting. Sexual harassment is regulated by the Constitution, the Code of Good Practice, the Protection from Harassment Act, the Criminal Law (Sexual Offenses 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 persons’ sexual fantasies, preferences or history.

Sexual harassment is not a gender specific crime. Men and women can be victims and perpetrators of sexual harassment. The crime is not location specific. Sexual harassment can occur in the workplace, at home, at school, in society, through music and on social media. Sexual harassment is mainly discussed in the context of sexual harassment in the workplace where there is an imbalance in the power dynamics between men and women. A lot of energy is channeled into preventing social harassment in the workplace and in defending employees from sexual harassment charges. Widespread use of social media has opened new avenues for criminal behaviour and related crimes.

Sexual harassment through social media games like ‘Smash or Pass’ 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. It is humiliating to the victims who are publicly objectified and scrutinized. Their private lives come under scrutiny and in some instances the violation of their privacy may entail defamation of character leading to stress, anxiety and depression.

There are four types of harassers; predatory harassers, dominance harassers, strategic or territorial harassers and street harassers. 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. According to the Code of Good Practice, sexual attention becomes sexual harassment if the behaviors is persistent although a single act (one ‘Smash or Pass YouTube video) can constitute sexual harassment if the victim has made it clear that they considered the behaviour or comments as offensive and if the perpetrator should have known that their conduct is unacceptable. Legally, ignorance of the law is not a defence. Thus YouTubers will not be able to successfully rely on the defence that they were unaware that the smash or pass 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 is important for both parties to know the law and to understand it as it applies to YouTube content creation.

Sources:Constitution, Code of Good Practice, Protection from Harassment Act, Criminal Law (Sexual Offenses and Related Matters) Amendment Act, Labour Relations Act, Employment Equity Act.