These WhatsApp messages can now land you in jail in South Africa
President Cyril Ramaphosa has proclaimed that most of the Cybercrimes Act will come into force tomorrow, including provisions on “malicious communications”, Ellipsis Regulatory Solutions reported.
These provisions criminalise the sending of certain types of harmful messages on social media in South Africa.
Penalties for sending such messages include imprisonment for up to three years and/or a fine.
The proclamation comes after Ramaphosa signed the Cybercrimes Act into law at the start of June.
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.
The unlawful and intentional access of a computer system or computer data storage medium is also considered an offence, along with the unlawful interception of, or interference with data.
In addition to defining specific cybercrimes, the Act also places several obligations on companies such as network operators, Internet service providers, and financial institutions.
The Act stipulates that electronic communications service providers and financial institutions must report cyber offences without undue delay and, where feasible, within 72 hours of becoming aware of them. If they fail to do so, it may lead to a fine of us much as R50,000.
However, this specific part of the new law—Chapter 8: Reporting obligations and capacity building, Section 54—is excluded from the president’s proclamation.
The malicious communications criminalised by the Cybercrimes Act are defined as follows:
Message which incites damage to property or violence
A message which incites damage to property or violence applies to any person who discloses, through an electronic communications service, a data message to a person, group of persons or the general public to incite
- (a) the causing of any damage to property belonging to; or
- (b) violence against a person or a group of persons
The Cybercrimes Act defines “violence” as bodily harm, and “damage to property” as damage to corporeal or incorporeal property.
Message which threatens persons with damage to property or violence
As an extension of the above, the Act also makes it an offence to distribute messages that threaten a group of people with violence or damage to their property.
The Act clarifies that group of persons means characteristics that identify an individual as a member of a group.
These characteristics include, without limitation:
- Marital status
- Ethnic or social origin
- Sexual orientation
- Birth and nationality
Disclosure of intimate image
A message constitutes disclosure of an intimate image if any person sends a message containing an intimate image of someone without their consent.
The Act describes an intimate image as both real or simulated, which show the person as nude, or displays their genital organs or anal region.
It also notes that the message is an offence if the person is female, transgender, or intersex and their covered genitals or breasts are displayed in a manner that violates or offends their sexual integrity or dignity.
Even if the person is not identifiable in the image, this offence applies if the message identifies the person in the text or in other information contained in the message.
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