New ‘WhatsApp laws’ could stop future riots and social unrest in South Africa: experts

 ·7 Feb 2022

A report issued by a panel of experts looking into the July 2021 riots has found that South Africa’s recently-introduced Cybercrimes Act would have given the state additional tools to clamp down on the looting and riots, and could be used to prevent future unrest from taking place.

President Cyril Ramaphosa appointed the panel following a spate of orchestrated public violence, destruction and sabotage that impacted KwaZulu Natal and parts of Gauteng in July 2021.

The three-member panel included human rights lawyer, Advocate Mojanku Gumbi, former deputy head of the South African Secret Service, Silumko Sokupa, and University of Pretoria’s Professor Sandy Africa, who also chaired the team.

Security expert, Michael Sarjoo was appointed as the secretary to the panel and accompanied it throughout the process.

The president tasked the panel to lead a thorough and critical review of the security services’ preparedness for the July events. The panel was mandated to examine all aspects of the security response and to make recommendations on how to strengthen security capabilities.

One of the key focuses of the report was the role of social media, including services such as WhatsApp and Facebook, in organising and helping spread the unrest.

The role of social media 

The panel found that the use of social media by various networks to instigate the violence and to organise themselves to carry out the violence was extensive.

“They left a clear trail of evidence and as a result, several could be apprehended and charged. The use of social media platforms seemed to confound the security services, who seemed unable to process the information that was spreading in the community and to respond by putting in place operational plans to respond.

“It appears that the violence was largely enabled by social media. Tweets, WhatsApp messages, Facebook, and other media were an easy way of spreading news about what was happening or about to happen.”

However, the report also shows that communities and businesses used the same methods to defend themselves in a fast, inexpensive, and efficient way.

“One problem is that social media is also a way of spreading false information, rumours, and sowing panic. The role of traditional media, with trained and ethical journalists, was a critical factor in the information equation.

“The media covered the events extensively, often taking risks to bring what was happening to the attention of the public. This was commendable, and the alternative – of under-reporting – would have left an information gap.”

New laws 

While the role of social media in the riots is clear, the panel noted that the recently introduced Cybercrimes Act may provide the state with additional tools to clamp down on possible future incidents.

The Act was partly introduced in December 2021 by president Cyril Ramaphosa. It gives law enforcement the teeth to go after criminals and helps victims of digital misconduct protect themselves and seek justice.

The legislation should also help provide clarity on where the lines should be drawn on legitimate voicing on political opinion using digital tools, and the use of such tools to threaten persons with damage to property or violence, or to send data messages which incite damage to property or violence, the panel said.

“The Act also provides the SAPS with the authority to investigate, search and seize, and cooperate with foreign governments to investigate cybercrime.

“Some have argued that if the Act had already been in operation in the period before the unrest, it might have been possible to apprehend any instigators using social media platforms,” the panel said.

What is the Cybercrimes Act? 

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.
  • Unlawfully contain an intimate image.

In addition to criminalising certain harmful messages, the Act also includes definitions for cyber fraud, forgery, extortion, and theft of incorporeal property.

Because of the direct mention of ‘messages’, the new regulations have been closely aligned with Meta-owned messaging service WhatsApp. However, they broadly apply to all social media services used in the country.

Commenting on the new legislation in December, Justice minister Ronald Lamola said the Act streamlines the laws which deal with cybercrime into a single law that criminalises conduct considered to be cybercrimes.

The Act also criminalises the disclosure of data messages which are harmful and provides for protection orders to protect victims against harm. The Act also regulates the powers to investigate cybercrimes.

Lamola said the new regulations also impose obligations on electronic communications service providers and financial institutions to report cybercrimes to the SAPS and provide for capacity building by the SAPS to detect, prevent and investigate cybercrime.

“The sections which are being put into operation on 1 December aim to ensure that the SAPS is adequately capacitated and trained to deal with cybercrimes; that verifiable statistics of the extent of cybercrime in South Africa is available; the effectiveness and capacity of the SAPS to investigate cybercrimes can be evaluated, and the capacity of the NPA to prosecute cybercrimes can be evaluated,” he said.

Lamola said that certain sections of the Act could not yet be put into operation as they require regulations that are still to be finalised.

“These sections include, amongst others, those relating to protection orders against the harmful disclosure of pornography and the establishment of a functional Point of Contact within the SAPS to coordinate cybercrime investigations within the Republic and to facilitate international cooperation.”

“The remaining sections will be put into operation in due course, once the concomitant regulations have been finalised.”

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