JOHN CHURU
The recent riots in South Africa have become a case study for future uprisings and violent actions by disgruntled residents of any nation. The riots caught most disaster management entities unprepared and were thus overwhelmed by the intensity of the destruction of property.
What most people agree on is the fact that the riots would not have been as extensive as they were without use of social media, which raises the question of implications – legal and/or otherwise – of forwarding potentially dangerous messages or news?
According to one Emma Sadleir, a self-styled social media expert, there is a principle in South Africa called chain of publication which you are responsible for the content that you share. If you send an electronic message that promotes destruction or harm of persons or property, you are agreeing with that message.
The first step is acknowledging that forwarding a message is equal to accepting the message and endorsing it. According to the law in South Africa, this means you may be jailed if you forward these kinds of messages. The latest Cybercrimes Bill holds creators and distributors of unlawful content equally accountable. Businesses and electronic communication service providers like WhatsApp, are obligated to report suspected cybercrimes to the police within 72 hours.
In as far as last month’s violence and looting is concerned, anyone who might have been tempted or eventually sent a message for others to take part in the mass looting of property committed a crime. After being approved by parliament on 2 December 2020, this far-reaching piece of legislation is one step closer to redefining digital safety and security in South Africa.
The new law is an extension of the old Cybercrimes and Cybersecurity Act 2017 that received staunch criticism for overreach. The bill deals extensively with the unlawful access, interception, and interference with data, commonly referred to as hacking. The cybercrimes law also takes direct aim at digital scams, cyber fraud, forgery, and uttering – defined as the creation or use of false data with the intention to defraud – being subject to broader terms of imprisonment.
While this protects South Africans against hackers and email scammers, the cybercrimes law also addresses the issue of malicious communications. Defined as the creation or distribution of data messages which incite violence, damage to property and personal threats, malicious communications extend to the sharing or forwarding of such content. This includes cyber-bullying, defined as harassing or encouraging a person to harm themselves, and false communication intent on causing mental harm.
This applies to both private and public conversations, which has especially far-reaching consequences for WhatsApp groups and chainmail-type messages which are shared among contacts. The bill does not distinguish between a creator and a sharer. Instead, the cybercrimes law holds any person who makes available, broadcasts, distributes or receives malicious communications equally accountable.
The same cybercrimes law empowers the South African Police Service (SAPS) to investigate, search, access and seize information contained in a private database or network. Businesses that may fall victim to a cybercrime or which have an employee who commits a cybercrime are required to offer cooperation and assist law enforcement officials in any investigations. Evidence admissible in court includes screenshots, image files, messaging records and oral accounts.