It is sound advice, but apparently widely ignored. This is evidenced by regular reports about yet another Facebook or WhatsApp scandal where someone – usually the person who got caught pants down – tries to salvage the situation. Recently, a Centurion woman rushed to court to interdict her lover’s girlfriend from distributing intimate pictures of her via WhatsApp.
As the occurrence of these incidents increased, seemingly at the same pace as our increase in social media usage, Parliament has stepped in with a new law to criminalise such behaviour.
The Cybercrimes Bill was adopted by the National Assembly two weeks ago. It is currently with the National Council of Provinces for concurrence and thereafter it needs the signature of the President to become law.
Bridget Makhanya, litigation specialist at VDT Attorneys, says the Bill is aimed at creating and defining certain “new” crimes such as “cyber fraud” and “cyber forgery”.
“Of course, crimes such as fraud and forgery have always existed, but the Bill aims to bring our law up to speed with technological advances. It makes provision for the punishment of far more innovative criminal activity in cyber space than your usual fake cheque crime,” Ms Makhanya says.
A drastic change in the Bill is the introduction of “malicious communications” chapter. This is where certain people’s social media activity is bound to become problematic when it comes to data messages.
A data message is defined broadly to include everything from a WhatsApp text, a Facebook, Instagram or Twitter post or an e-mail. Here are the three types of data messages that will be outlawed:
- Any data message sent with the intent to incite damage to property or violence against a person or group of persons. “Importantly, property is defined as corporeal and incorporeal property,” Ms Makhanya says. This includes intellectual property such as trademarks of brands.
- Any message that threatens someone or a group with damage to their property or violence. “The message need not be distributed on a large scale. It can be sent from one individual to another individual to qualify as an offence.” The definition of a group is also very wide and not limited to the obvious groupings such as different races or people with the same sexual orientation.
- Distribution of any “intimate” image of another person without their permission. “In short: sending a naked selfie is okay. If the receiver redistributes your naked selfie without your permission while you thought it was for his or her eyes only, it will be a crime,” Ms Makhanya explains. The nude person has to be identifiable – either in the picture itself or through a description – to be included in this category.
But what is an “intimate” image? “The Bill actually goes down to the nitty gritty. It is an image where the person is nude, or where any part of the naked body is exposed. This includes images where the person is not explicitly naked, but is of such a nature that it violates or offends the sexual integrity or dignity of the person,” Ms Makhanya says.
All three categories of banned messages are declared to be an offence, punishable by a fine, up to three years imprisonment or both.
Ms Makhanya says an important part of the Bill is the remedies provided to victims of cyber-attacks or bullying.
After a complaint is filed with the police, the aggrieved party may bring an ex parte application to a Magistrate for an order to prohibit any person from further making available or distributing the data message. Ex parte simply means without notice to the other party. One does not have to warn the other party and risk it that the bully may distribute the message further.
However, these provisions will only come into effect once the Bill is enacted. In the meantime, people who are subjected to cyber misconduct are best advised to consult an attorney. “The usual common law remedies that are available to protect one’s dignity, privacy and reputation are still available. It is possible, depending on the facts of each case, to obtain an interdict and to claim damages.”
www.vdt.co.za or 012 – 452 1300
Copyright @ VDT Attorneys® December 2018
