Messages being shared over WhatsApp are landing South Africans in trouble, with legal action being taken against those who are sharing copyrighted content as well as authors of messages that incite harm. This can lead to criminal charges, resulting in prison time and fines.
It has been reported for years that messages that South Africans are at risk of legal action if they post and share inciteful or hateful content on social media channels and services like WhatsApp – but since President Cyril Ramaphosa signed the Cybercrimes Act into law in 2021, these cases are now being put to the test.
Regarding harmful content on WhatsApp, the Act defines three types of content that can be criminalised in South Africa. This includes messages that:
- Incite damage to property or violence
- Threaten people with damage to property or violence
- Unlawfully contain an intimate image
The Act also has definitions of cyber fraud, forgery, extortion, and theft of incorporeal property.
A South African convicted under the Cybercrimes Act is liable to a fine or imprisonment for up to fifteen years or both.
The Act was put to the test in 2023 when a senior figure from Operation Dudula – a xenophobic vigilante group – was arrested in Durban after voice notes he recorded were circulated.
The messages incited South Africans to seize foreign-owned businesses.
However, the case never went to trial as the Operation Dudula member pleaded guilty to incitement and was fined R10,000.
Karen Allen from the Institute for Security Services said that National Prosecuting Authority is looking at similar cases under the Cybercrimes Act, such as those involving revenge porn.
There are also cases of copyright infringement which are making their way to the courts.
For example, in December 2023, Media24 launched legal action against two WhatsApp users who were allegedly reproducing and distributing the media group’s publications on the platform.
The users allegedly replicated digital copies of Media24 magazines and newspapers on PDF and distributed them to users of a WhatsApp group they set up. The group said the users gained access to the publications by exploiting a trial of the digital subscription.
The case is expected to be heard on 29 January 2024.
According to Allen, the conviction in the incitement case shows that the Cybercrimes Act has teeth and can be an effective tool in combatting these types of crimes in what is sure to be an extremely politically charged year.
“The conviction comes at an important time as the country heads to national elections in 2024. In a climate of political polarisation and factionalism within the governing African National Congress, online influence could play a significant role,” Allen added.
These fears have recently been heightened by the public support of the new breakaway party uMkhonto we Sizwe by former President Jacob Zuma.
Allen noted that evidence has surfaced that WhatsApp group chats were used to incite the July 2021 unrest – which resulted in over 300 deaths and billions in property damage. The looting and widespread violence shortly followed the arrest of Zuma for contempt of court.
Forensic experts said that technology was the main form of organisation in the protests, with the police and intelligence officers found to be “ill-equipped” to deal with the threat.
Looking more positively, the conviction shows how the Cybercrimes Act can be efficient in tackling the incitement of harm.
Although the NPA worked with the SAPS cybercrime unit in the case, the Act allows external technical experts to assist police and prosecutors.
That said, there is still a skills gap in the country.
“Digital evidence is increasingly the key to proving culpability in complex corruption cases, for example; yet the skills needed to integrate this evidence into investigation plans and prosecution strategies is in very short supply,” said Professor Chris Stone.
“It is not a question of whether to build greater skill inside SAPS and the NPA or to build greater resources available in the private sector – both are essential.”
The Cybercrimes Act can be found below (mobile users can click here)