The Department of Justice and Constitutional Development has published responses to the public comments received on the Cybercrimes and Cybersecurity Bill, which was tabled in parliament in February 2017.
Several further amendments to the Bill are proposed, including:
- Revisions to the offences of unlawful access to data, incitement of violence and cyber bullying.
- In line with the Budapest Convention on Cybercrime, unlawful access is now the unlawful and intentional overcoming of protection measures intended to prevent access to data, a computer program, a computer data storage medium or a computer system.
- In line with the Constitution, incitement of violence now requires intention.
- Cyberbullying is now an individual offence, as opposed to being included with incitement of damage to property and violence.
- A revised definition of ‘computer’, in response to a comment that the definition should include technology that performs physical actions, such as self-driving cars, Internet of Things devices and medical devices. ‘Computer’ now includes devices which are related to, connected with or used with programmable electronic devices.
- A new definition of ‘electronic communications identity number’, which includes a telephone number, mobile number, email address, IP address, URL or other subscriber number. An electronic communications service provider may be required to give this information to a court, together with the identity of the subscriber, to assist in protecting the victim of revenge porn, cyber bullying or incitement of violence.
- A discretion in the amount of the fine imposed on an electronic communications service provider or financial institution for failing to report certain cybercrimes to the South African Police Service or to preserve information relating to these crimes. The fine may not exceed R50 000, as opposed to being an automatic fine of R50 000.
The Department will also be consulting with the Film and Publication Board (FPB) to ensure a consistent definition of ‘child pornography’ in the Bill, the Sexual Offences Act and the Films and Publications Act. The FPB is responsible for classifying films, games and publications and must refuse classification of any containing child pornography.
If these proposals are accepted by the Portfolio Committee on Justice and Constitutional Development, they will be included in the Bill. It seems that we may be getting close to a final version.