Think before you click - Ramaphosa signs Cybercrimes Act into law

What does the new Cybercrimes Act mean for you?

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JOHANNESBURG - Itching to send your neighbour a video you made threatening them? How about putting a steamy videos your ex-partner sent you into the street WhatsApp group? If you don't think before you hit send, you could serve up to 15 years in prison for revenge porn and messages that incite violence.

On Tuesday, President Cyril Ramaphosa signed the Cybercrimes Act into law, which says that it's a crime to send certain types of harmful WhatsApp message or texts on social media and other online platforms in South Africa.

The Cybercrimes Act defines three types of harmful messages that have been criminalised in South Africa. They are messages which:

  • Incite damage to property or violence;

  • Threaten people with damage to property or violence; and

  • Unlawfully contain an intimate image.

The director and head of data privacy practice at Werksmans Attorneys, Ahmore Burger-Smidt, told MyBroadband: "President Cyril Ramaphosa has just signed the Cybercrimes Bill, which seeks to bring South Africa’s cybersecurity laws in line with the rest of the world, into law. This Bill, which is now an Act of Parliament, creates offences for and criminalises, amongst others, the disclosure of data messages which are harmful".

The Act also includes other offences, such as cyber fraud, forgery, extortion and theft of incorporeal property. The unlawful and intentional access of a computer system or computer data storage medium is also considered an offence along with the unlawful interception of, or interference with data.

"This creates a broad ambit for the application of the Cybercrimes Act which defines “data” as electronic representations of information in any form. It is interesting to note that the Act does not define “cybercrime” but rather creates a number of offences such as those canvassed above," said Burger-Smidt to MyBroadband.

In addition to the above, the Act outlined a few obligations directed at companies, including network operators, Internet service providers, and financial institutions.

It said that electronic communications service providers and financial institutions must report, "without undue delay and where feasible, cyber offences within 72 hours of becoming aware of them". If they fail to do, so it may lead to a fine of up to R50,000.

These companies are now obligated to help with solving or investigating cybercrimes. They must preserve any information that may help the South African Police Service in its investigation, and may also be required to hand over hardware when an application is made to the court.

"It is further interesting to note the impact this Act will have on businesses, especially considering its overlap with the Protection of Personal Information Act 4 of 2013 (POPIA), amongst other regulatory codes and pieces of legislation".

POPIA aims to promote the protection of personal information processed by public and private bodies.

Meanwhile, anyone who is convicted of an offence under the Cybercrimes Act is liable to a fine or imprisonment for a period of up to 15 years and sometimes both a fine and imprisonment, depending on the offence.

The breakdown of the malicious communications criminalised by the Cybercrimes Act is as follows:

INCITE DAMAGE TO PROPERTY

A message which incites damage to property or violence applies to any person who discloses, by means of an electronic communications service, a data message to a person, group of persons or the general public with the intention to incite.

(a) the causing of any damage to property belonging to; or
(b) violence against, a person or a group of persons

The Cybercrimes Act defines “violence” as bodily harm, and “damage to property” as damage to any corporeal or incorporeal property.

THREATEN A GROUP OF PEOPLE WITH VIOLENCE

The Act also makes it an offence to distribute messages that threaten a group of people with violence or with damage to their property.

These characteristics include:

  • Race
    -Gender
    -Sex
    -Pregnancy
    -Marital status

  • Ethnic or social origin

  • Colour

  • Sexual orientation

  • Age

  • Disability
    -Religion

  • Conscience

  • Belief

  • Culture

  • Language

  • Birth and nationality

DISCLOSURE OF INTIMATE IMAGE

Disclosure of an intimate image is if someone shares a message containing an intimate image of another person without their consent. The Act describes an intimate image as both real or simulated, which show the person as nude, or display his or her genital organs or anal region.

It also notes that the message is an offence if the person is female, transgender, or intersex and their covered genitals or breasts are displayed in a manner that violates or offends their sexual integrity or dignity.

Even if you can't see the person's face in the image, this offence applies if the message identifies the person in the text or in other information contained in the message.

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