Authored By: Zintle
University of South Africa
INTRODUCTION
The internet use in South Africa has grown immensely. There are approximately 51.7 million internet users, which is about 79.6% of the population.as more as people come online, the risks of scams,whatapp fraud and cyberbullying in schools also increase.
Before the Cybercrime Act came into effect in late 2021, South Africa relied on the Electronic Communications and Transactions Act 25 0f 2002 and common law to prosecute online crimes. President Cyril Ramaphosa signed the cybercrime bill on 26 May 2021,and the legislation officially came into effect on 1 December 2021.
While the Act provides important protections for victims,section 16 has been criticized for potentially violating the right to freedom of expression. This article argues that although the cybercrime Act 19 0f 2020 was necessary, it needs clearer wording to balance security and free speech. The discussion will focus on section 8,16,17 and 54 of the Act.
MAIN BODY
PART A: SECTION 8 CYBER FRAUD.
Section 8 states that, any person who unlawfully and with intention to defraud makes a misrepresentation “through any interference with data or a computer program as contemplated in section 5(1)(a),(b) or(e) or interference with a computer data storage medium or a computer system as contemplated in section 6(2)(a)”.[1]
A very common scam is bank impersonation phone call in South Africa,also called vishing. This is whereby criminals call and pretend to be bank staff, they put more pressure on call and no space for you to think clearly then they trick you into sharing your personal banking details in example pin and account holder to steal your funds.
It was significant to make this a separate crime because it makes the work of the police to be tough, it is sometimes very hard to trace and allocate the criminals, it is somehow unaffordable in terms of technology use to find the scammers.
SECTION 16 MALICIOUS COMMUNICATIONS
This section criminalizes the sending of data message that intimidates someone,threatens someone, make damage to property or person and spread false information. [2]This is common in South Africa through Whatapp and Facebook, this section is important because before the Act, victims of cybercrime had no specific law to use. Before s16, victims had to rely on defamation cases like Le Roux v Dey now they have a direct criminal charge. In Le Roux v Dey the court dealt with damages from ruining one’s reputation on social media posts, this is evidence of how serious “malicious communications” can be.[3]
Critics argue that this could limit the Constitutional right to freedom of expression.[4] Despite the concerns the section aims to protect people from being unlawfully displayed irrespectively and creating false information.
SECTION 17: UNLAWFUL AIDING AND ABETTING,ETC
In this section it is a crime to; aid,abet,induce,incite,instigate,instruct,command or procure the commission of any offence in the Act. [5]If you do not do the crime yourself, but you help someone else to do it, you are also guilty. This section links to section 16, together they target both the source and the viral spread of revenge porn. The most common example is when person X sends person Y’s nude without consent(section 16), person Z forwards that same nude to a Whatapp group(section 17) even if person Z did not take the photo re-sharing is an offence. Without section 17, people could easily escape their doings by saying they only forwarded not post it, so the law closes that gap. The penalty of this wrongdoing is either a fine or up to 3 years imprisonment, or both. It helps to stop the doing of harmful content online.
PART B:SECTION 54 REPORTING OBLIGATIONS
Section 54 says: Electronic Communications service providers, financial institutions and other entities who becomes aware that their system was used to commit a cybercrime must report it to the South African Police Service(SAPA).[6]
WHAT THEY MUST REPORT:
Any transgression under the cybercrime Act that was committed using their system/network, for instance phishing emails sent from their servers, fraud using the or bank accounts,child porn shared on their platform.
CRITICISM/CHALLENGE:
One of the challenges from this section is that companies now have to hand over data to police this concerns the companies privacy.however,it is not yet confirmed whether small banks are actually complying and reporting.there are also delays because reporting does not automatically means South African Police Service(SAPS) will investigate,they still need resources, yet if they fail to report,they can be fined.the idea is to create accountability.
PART C: THE POSITIVES OF THE ACT
It is the first dedicated law for cybercrime. Section 54 places a legal duty on electronic communications service providers or financial institutions to report cybercrime committed using their systems.this include banks and network service providers like MTN,VODACOM,TELKOM etcetera. Before the Act, lot of cybercrimes were not reported because companies were scare of bad PR. A bank that found 100 customers were victims of pishing would often just refund the customers and keep quiet. Section 54 now forces the bank to report to the police officials so they can investigate the source, it makes it a legal duty to report the crime so that police can track the people involved.
CONCLUSION
In conclusion, the Cybercrimes Act 19 of 2020 was introduced to address the accumulating problem of Cybercrime in South Africa. Sections such as 8 and 54 provide important tools to prosecute fraud and force companies to report crime. However section 16 remains controversial because its vague wording could limit freedom of expression overall, from scams, fraud and cyberbullying although clear definitions are needed to avoid abuse. Parliament should review section 16 for more guidance to courts. To balance security and Constitutional rights.without these amendments, there risk could be that the act may be used to silence legitimate speech instead of only protecting victims.
REFERENCE(S):
CASES:
Le Roux v Dey ZACC 4
LEGISLATIONS
Cybercrime Act 19 of 2020
Section 8 of Cybercrime Act 19 of 2020
Section 16 of Cybercrime Act 19 of 2020
Section 17 of Cybercrime Act 19 of 2020
Section 54 of Cybercrime Act 19 of 2020
The Constitution of The Republic of South Africa,1996,s16
[1] Section 8 of Cybercrime Act
[2] Section 16 of Cybercrime Act
[3] Le Roux v Dey ZACC 4
[4] Section 16 of the Constitution
[5] Section 17 of Cybercrime Act
[6] Section 54 of Cybercrime Act
