South Africans will soon have to be much more careful about posting messages on WhatsApp and other social media platforms, as the Cybercrimes and Cybersecurity Bill (“the Bill”), which is currently under consideration by the National Council of Provinces, attempts to police malicious messaging.

Cybercrime is on the rise and the Bill essentially aims to stop these acts, to keep people safe from criminals and terrorists, to improve the security of the country and to bring South Africa in line with other countries in terms of cyber legislation. The practical impact of the Bill on all organisations and individuals are significant as it impacts all of us who process data or use a computer.

Contravening the provisions contained in the Bill could lead to a fine or imprisonment for a period not exceeding three years, or both a fine and imprisonment. The Bill fundamentally intends to curb the number of harmful messages, which by definition now covers a wide range of subject areas, on social media.

The Bill criminalises, amongst others, the following acts:

  • Disrupting another’s personal details: By sharing another’s personal details online for malicious purposes, without their knowledge and/or consent.
  • Unlawful sharing of intimate images: Publishing and/or distributing another’s nude intimate images or multimedia files of an intimate nature will constitute a harmful disclosure of pornography, which the Bill seeks to regulate. The Bill describes an “intimate image” as both real and simulated messages which shows the person as nude or displays his/her genital organs or anal region. This includes instances where the person is identifiable through descriptions in a message or from other information displayed in the data message. These acts can cause extensive reputational damage to another, especially if the said person had no intention of making it public.
  • Sharing of information regarding investigations into cybercrimes: The Bill enables the Minister of Justice to make regulations on information sharing. This includes sharing information on cybersecurity incidents, detecting, preventing and investigating cybercrimes.
  • Inticing damage to property belonging to “a group of persons”: Sharing messages which encourage people to damage property belonging to a certain demographic group, could lead to an arrest simply for the incitement rather than the act. This includes any implied threats of violence against “a group of persons”.

The Bill has come a long way since its first publication in 2015 and the overall effect of its provisions will be tested over time. Taking the implications of breaching a provision of the the Bill into account, users should think twice before pressing the ‘send’ button.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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