15 years in jail if you send these WhatsApp messages

Cyber crimes act: why certain ‘harmful’ messages may land the senders in trouble

If you don’t think before you hit send, you could serve up to 15 years in prison for porn and posts that incite violence. Internet trolls who bully and insult others online, need to watch out. The new Cyber Crimes Act signed into law last week criminalises sharing and disclosure of messages or content which may be deemed harmful.

The Bill was first proposed in 2015 by the department of justice and constitutional development to address South Africa’s lack of legislation in this area and introduced to the National Assembly in 2017. The proposed Bill had undergone several changes since then, with critics worried its implementation would be too broad and too open to abuse.

The Bill was referred to and passed by the National Assembly and sent to the National Council of Provinces on 27 November, 2018. By 1 December, 2020, the Bill was finalised, only requiring the president’s signature. That said, even though the Act has now been signed into law, it is not yet fully in effect. President Cyril Ramaphosa must still confirm the commencement date in the Government Gazette.

Take, for example, the Protection of Personal Information Act, which comes into effect at the end of this month when it was signed by the president in 2013. Similarly, the Films and Publications Amendment Act which addresses revenge porn has yet to come into force.

Under the new Act, three types of messages – which include data messages on social media platforms – could be deemed as “harmful” and may land the senders in trouble.

Any person who violates the Act could face a fine, imprisonment of up to 15 years or both. Harmful data messages include:

  • Data messages inciting violence or damage to property.
  • Messages threatening people with violence or damage to their property.
  • Data messages containing intimate images sent without consent.
  • A data message is defined as any electronic representations of information in any form.

The types of harmful content includes, for example, the distribution of revenge porn and threats sent on social media apps, such as Facebook, Twitter, WhatsApp or Instagram. According to South African law, the minimum age of criminal capacity is 12. That means anyone under the age of 12 cannot commit a criminal offence. Those over the age of 12 have full criminal capacity. That is the age when you are held criminally responsible for any offences you may commit.

Social media law specialist, Emma Sadleir cites the example of a 14-year-old girl from Limpopo who was charged with assault after a victim of bullying died by suicide. The reasoning behind the charge is that a 14-year-old is able to appreciate the consequences of their actions and therefore is able to tell right from wrong.

There is a presumption that teens from the ages of 12 to 14 would not have criminal capacity. However, if they are educated, go to a good school and come from a good family, they should be able to appreciate the consequences of their actions. There are laws in place when it comes to children sharing illicit An offender, if convicted, could be liable to pay a fine or face imprisonment. Content, including nude pictures. Under the Film and Publications Act, it’s referred to as sexting.

When minors above the age of criminal capacity are involved in sexting and the sharing of illicit materials, it’s considered a criminal offence under the Sexual Offences Act and dealt with in the same terms as the creation, distribution and solicitation of child pornography.

People will need to think twice before responding to a troll on Twitter, or recording a video call without the other participant’s consent. To a large extent this includes cyber fraud, forgery, extortion and theft of incorporeal property.

Law firm Cliffe Dekker Hofmeyr said cybercrimes included:

  • Hacking or unlawfully and intentionally accessing data, a computer program, data storage medium or computer system.
  • Interception of data without consent. This includes the acquisition, viewing, capturing or copying of data of a nonpublic nature.
  • Cyber fraud includes any 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 computer system.
  • Cyber forgery or cyber uttering which pertains to the creation of falsified data with the intention to defraud.

Malicious communications include 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”.

An offender, if convicted, could be liable to pay a fine or face imprisonment ranging from five to 10 years, or up to 15 years for aggravated offences, depending on the terms of the offence. The new Cyber Crimes Act will also change the way people interact with data and electronic devices, especially during a time when working from home has become the new norm. For example, if an employee commits a cybercrime, businesses will be required to cooperate with authorities in terms of complying with search warrants and other directions issued by a court of law.

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