These online messages could soon be a crime in South Africa – and will land you in jail for up to 3 years

 ·5 Dec 2017

The Department of Justice and Constitutional Development has published responses to the public comments received on the Cybercrimes and Cybersecurity Bill, which was tabled in parliament in February 2017.

Part of these responses include information surrounding new offences contained in the bill as well as the punishments for these unlawful acts.

According to Kerri Crawford, senior associate at law firm Norton Rose Fulbright, one of the biggest new additions comes with the introduction of “cyberbullying” as a new criminal act. Speaking to BusinessTech, Crawford said that the Bill addresses cyberbullying and other such acts in a chapter, entitled Malicious Communications.

There are three offences in this chapter, relating to:

  • inciting damage to property or violence;
  • data messages which are harmful;
  • distribution of intimate images without consent.

“In all cases, the offender can be issued a fine, imprisonment of up to three years, or both a fine and imprisonment,” said Crawford.

Crawford said that a number of critiques had been raised against the new laws, including concerns that they will restrict freedom of expression and limit free speech.

The legal expert further broke down the new offences should the amendment bill be given the green light.

Data messages which incite damage to property or violence

These will be data messages sent unlawfully with the intention to:

  • threaten a person with damage to property or violence (either against that person, a member of their family or household, or anyone in a close relationship with that person);
  • threaten a group of persons with damage to property or violence (either against a member of the group, the group as a whole or any person associated with the group).

“An additional element is that a reasonable person in possession with the same information and with regard to all the circumstances would regard the data message as a threat of violence or damage to property,” said Crawford.

“An example is a person who threatens violence against an ex-partner’s new partner on social media.”

Data messages deemed ‘harmful’

A data message will be harmful if it:

  • intimidates, encourages or harass a person to harm himself or herself or any other person; or
  • is inherently false in nature and it is aimed as causing harm.

‘Harm’ will mean any mental, psychological, physical or economic harm. The same additional element of reasonableness as above applies, said Crawford.

“This is cyberbullying without the threat of violence. For example, a person who is encouraged by others on social media to commit suicide.”

Distribution of intimate images without consent

An ‘intimate image’ means a visual depiction of a person made by any means:

  • under circumstances that give rise to a reasonable expectation of privacy; and
  • in which the person is nude, is exposing his or her genital organs or anal region or, in the case of a female, her breasts.

“This relates to data messages including an intimate image of an identifiable person, where the sender knows that the person did not consent to it being made available, broadcasted or distributed,” said Crawford.

“An example would be somebody surreptitiously taking pictures of people changing in a gym locker room and sharing them with their friends on a Whatsapp group.”

“The department has stated that this section is not intended to deal with “revenge porn”, which is addressed later in the bill by an amendment to the Sexual Offences Act,” said Crawford.

Read: Best and worst mobile networks in SA: MTN vs Vodacom vs Cell C vs Telkom

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