Cybercrimes Act 2020 and data messages

What it means for your privacy

Cybercrime is on the increase in every aspect of life. Hardly a day goes by without a news item about the latest ransomware attack. But there is one type of cybercrime that is decidedly egregious. Cyber abuse, particularly when it involves bullying, disclosure of intimate images, or threats of blackmail, can lead to mental health issues and even suicide, especially among young people. This is one of the misuses of technology that the Cybercrimes Act 2020 aims to address, among many others.

Criminal data messages

The Act was signed into law on 26 May 2021 by President Cyril Ramaphosa. Certain sections became effective on 1 December 2021, including the criminalisation of data messages – in other words, text messages, WhatsApp messages, etc. – that are considered harmful. It allows a victim of these types of data messages to apply for a protection order, pending the outcome of criminal prosecution.

What is covered

Data messages of intimate images are covered in Section 16 of the Act. This section renders anyone guilty of an offence who intentionally discloses, by means of an electronic messaging service, an intimate image of another person without their consent. It goes on to describe in anatomical detail the definition of an intimate image. The image may have been willingly shared by the subject, but that does not allow the recipient of the image to share it further. Section 16 states that it is an offence to disclose the image if the other person had “a reasonable expectation of privacy at the time that the data message was made” and if the disclosure “violates or offends the sexual integrity or dignity” of the sender or “amounts to sexual exploitation”.

What can a victim now do?

A victim of this type of cybercrime can lay a criminal charge against the other person with SAPS. This is covered in Section 20 of the Act, which allows a complainant to approach the court without giving advance notice (this is called “ex parte”) and apply for a protection order. The order prohibits the other person from disclosing or further disclosing the data message related to the charge. It also allows the complainant to “order the electronic communications service provider whose electronic communications service is used to host or disclose the data message which relates to the charge, to remove or disable access to the data message”.

When the protection order is granted, it is served on the cybercriminal if their identity is known, or on the electronic communications service provider if it is not. They then have 14 days to apply to court to set aside or amend the order. On the date the case returns to court, if the court is satisfied that an offence has been committed, it must order:

1. that person to refrain from further making available, disclosing or distributing the data message;
2. that person or any other person to destroy the draft message, any copy of the data message or any output of the data message and submit an affidavit to the prosecutor, that the data message has been so destroyed; and
3. an electronic communications service provider to remove or disable access to the data message in question.

If the perpetrator of the harmful message does not comply with this court order, they are guilty of an offence and may be liable to a fine and/or imprisonment for up to two years on conviction.

Cyberbullying and abuse is a serious problem in South Africa. It takes many forms, including harassment via social media. The Act has created a number of new offences related to data, messages, computers and networks. We welcome Section 16 of the Cybercrimes Act 2020 as a key means to tackle the harm done by abuse of electronic messaging.

Let SD Law help

If you are the victim of cyberbullying, or have experienced the abuse of a data message, we can arrange a protection order against your assailant. Contact Simon on 086 099 5146 or simon@sdlaw.co.za today for more information or to make an appointment. Don’t suffer in silence. The Cybercrimes Act 2020 is there to protect you.

Further reading:

• Cybercrimes Act 2020
• Cyberbullying – it’s time to fight back
• Online harassment – Chrissy Teigen leaves Twitter, citing abuse and hate
• You don’t have to put up with online harassment
• Crypto currency industry seeks legal skills

SD Law

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