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In an ever-changing digital world, most people have some form of online presence – from email, WhatsApp, Facebook and Instagram, to online banking and shopping. This dependence on computers and the internet, accelerated by the impact of the COVID-19, has left individuals, organisations and even nations increasingly at risk of being victims of cybercrime, as criminals are provided an online means to commit a diverse range of crimes from locations around the globe.

In this context, the President recently signed the Cybercrimes Act into law, which is set to come into force on a date still to be proclaimed. This Act intends to bring South Africa in line with international cyber security standards, and will create new offences related to the improper use of computers, the internet, data and other cyber materials.

The impact of the Act will be significant for all those who process data, use a computer and interact online. It is therefore necessary that all persons in today’s virtual society familiarise themselves with this Act, failing which individuals or organisations may find themselves unwittingly committing offences.

The Cybercrimes Act intends to codify numerous existing offences and create new offences related to data, defined in the Act as electronic representations of information in any form. Offences contained in the Act include, among other crimes:

  • hacking;
  • the use of ransomware;
  • cyber extortion;
  • cyber forgery and uttering (being the creation or passing-off of false data or a false computer program with the intention to defraud); and
  • the unlawful interception of data or intentional unauthorised access of a computer system or computer data storage medium.

It further prohibits online messages which:

  • incite violence or damage to property;
  • threaten persons with violence or damage to property; or
  • unlawfully contain an intimate image. This criminalises what is commonly known as “revenge porn”, and refers to both real and simulated nude images sent or distributed without a person’s consent, or which depict persons in a manner which violates or offends their sexual integrity or dignity.

Upon conviction offenders may face a fine, imprisonment, or both. Depending on the cybercrime committed, offenders may be sentenced to up to one to fifteen years in prison.

The Act further provides the Police extensive powers to investigate, search and seize cyber materials, including a computer, database or network. In addition, due to the transnational nature of cybercrimes, the Act empowers the President to enter into agreements with other states in the co-operative detection, prevention and investigation of cybercrimes. Similarly, it provides South African Courts with expanded jurisdiction to hear cybercrime matters despite their cross-border nature.

In terms of the Act, electronic communication service providers and financial institutions must:

  • report offences to the Police no later than 72 hours of becoming aware of the offence; and
  • preserve any information that relates to an offence.

Failure to do so can amount, on conviction, to a fine of R50 000.

The Act symbolises a positive step in increasing South Africa’s cybersecurity standards, however commentators on the Act have criticised its wishful nature, in that it intends to impose obligations on an already overburdened and underfunded Police Service and legal system. Further, it seeks to impose standards of cyber security whilst portions of the country remain poverty-stricken and under developed, in which large numbers of cyber users are uneducated and increasingly prone to cyber security threats.

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Written by Dyllon Nicholls – Candidate Attorney.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW ATTORNEYS at directly for advice applicable to your specific matter.