Cyber security is a top priority in the modern world and South Africa has been good at keeping with the times.
A draft Cybercrimes Bill which was first mooted in 2017 has undergone a number of changes and will soon be signed into law by the President.
The latest version of the Bill can be found here.
Similar to other parts of the world, the Bill will include criminalising the nonconsensual sharing of intimate images under what is considered ‘Malicious Communication’.
Often women have been subjected to ridicule, harassment and made to feel ashamed, similar to the Salem Witch without the public executions, for sending intimate images. These new laws will help protect the dignity of those whose images are shared if they are ever in a situation where someone is trying to use these images against them.
The updated Cybercrime Bill aims:
“To create offences which have a bearing on cybercrime; to criminalise the disclosure of data messages which are harmful and to provide for interim protection orders; to further regulate jurisdiction in respect of cybercrimes; to further regulate the powers to investigate cybercrimes; to further regulate aspects relating to mutual assistance in respect of the investigation of cybercrimes; to provide for the establishment of a designated Point of Contact; to further provide for the proof of certain facts by affidavit; to impose obligations to report cybercrimes; to provide for capacity building; to provide that the Executive may enter into agreements with foreign States to promote measures aimed at the detection, prevention, mitigation and investigation of cybercrimes; to delete and amend provisions of certain laws; and to provide for matters connected therewith.”
A list of some of the cybercrimes
- unlawful access – which includes the unlawful and intentional access to data, a computer program, a computer data storage medium or a computer system (commonly referred to as “hacking”);
- unlawful interception of data – which includes the acquisition, viewing, capturing or copying of data of a non-public nature through the use of hardware or software tools;
- unlawful acts in respect of software and hardware tools – being the unlawful and intentional use or possession of software and hardware tools that are used in the commission of cybercrimes (such as hacking and unlawful interception);
- unlawful interference with data, computer programs, storage mediums and computer systems – being the unlawful and intentional interference with data, a computer program, a computer data storage medium or computer system;
- cyber fraud – being fraud committed by means of data or a computer program or through any interference with data, a computer program, a computer data storage medium or a computer system;
- cyber forgery – being the creation of false data or a false computer program with the intention to defraud;
- cyber uttering – being the passing-off of false data or a false computer program with the intention to defraud; and
- malicious communications – being the distribution of data messages with the intention to incite the causing of damage to any property belonging to, or to incite violence against, or to threaten a person or group of persons, including the distribution of “revenge porn”.
Disclosure of data message of intimate image
Any person (‘‘A’’) who unlawfully and intentionally discloses, by means of an electronic communications service, a data message of an intimate image of a person (‘‘B’’), without the consent of B, is guilty of an offence.
Person B includes
- The person who can be identified as being displayed in the data message;
- Any person who is described as being displayed in the data message, irrespective of the fact that the person cannot be identified as being displayed in the data message; or
- Any person who can be identified from other information as being displayed in the data message.
An intimate image
The bill defines an ‘‘intimate image’’ as a depiction of a person which is real or simulated, and made by any means in which:
- Person B is nude, or the genital organs or anal region of Person B is displayed, or if Person B is a female person, transgender person or intersex person, their breasts, are displayed; or
- The covered genital or anal region of Person B, or if Person B is a female person, transgender person or intersex person, their covered breasts, are displayed.
- in respect of which B so displayed retains a reasonable expectation of privacy at the time that the data message was made in a manner that: violates or offends the sexual integrity or dignity of B; or amounts to sexual exploitation.
According to Cliffe Dekker Hoffmeyer: “tThe Cybercrimes Bill prescribes the sentences that offenders will be liable to on conviction of the cybercrimes created by the Bill, which entail fines and/or imprisonment ranging from five to 10 years, with aggravated offences attracting imprisonment of up to 15 years.
“In the case of the offences of cyber fraud, cyber forgery and uttering, the Bill provides for broad penalties that could be imposed for anyone found guilty of any of these cybercrimes where a court will have a discretion to impose a penalty that it deems appropriate under section 276 of the Criminal Procedure Act 51 of 1977.
“Such penalties may include a fine (unspecified), imprisonment, a declaration as a habitual criminal and correctional supervision.”