Traffic coming off of the N1 onto Woodmead Drive is a nightmare and I laugh knowingly at myself for saying “I shouldn’t be more than 15 minutes”, 20 minutes earlier.
Today of all days there had to be a backup, the day I am meant to be meeting with Advocate Jacqueline Fick, the executive head of forensic services at Cell C.
In an attempt to ease my nerves, I ponder the subject matter of the interview, the Cybercrime Bill and almost instantly begin to worry even more.
The bill was first published in August 2015 and since then has been adapted changed and published again in the form which was presented to Parliament in February of this year. As a matter of interest you can find a version of that bill here on htxt.africa where you can also add your thoughts.
The trouble with legislation however is that unless you understand it, all you’re going to see is a lot of jargon interlaced with more jargon peppered phrases you may understand.
This is troubling as the bill impacts each and every South African online today, as well as generations following us.
“An all-rounder that addresses needs in our South African law.”
So after battling through traffic I arrived at Cell C HQ and proceeded to ask Fick more about the bill and how she feels about it.
“If this bill were a man, I’d marry it,” Fick exclaims with an expression not unlike one I saw on my mother’s face when I was named prefect in primary school.
One of the fears many folks have is that the bill appears (in many parts) to negatively impact individuals and companies alike but Fick feels differently.
“I love this bill, I think its an all-rounder that addresses needs in our South African law. What was done here is that the Department of Justice involved a number of role-players in the writing of the bill; for example telcos were involved in the drafting of the bill and asked our opinion of the bill,” says Fick.
This, the executive says gave telcos a vested interest in the bill and should help the implementation of it when it is eventually made into an act. “It’s very hard to force legislation but if you give people a stake and the ability to shape it, it becomes easier to implement it,” says Fick.
The bill brings South Africa in line with the International Convention on Cybercrime, which was signed in 2001. That convention states that every signatory should have one piece of legislation that deals with all aspects of cyber crime.
When that was signed South Africa had a fragmented approach to cyber crime; for instance child pornography was covered in some ways by the FPB act, most cyber offences were covered in the ECT act but as the approach was fragmented there were, and at present still are, gaps in the law.
Fick tells us that identity and information theft online such as that which happens during phishing were not sufficiently covered by existing laws. While prosecutions could be handed down in cases where that information was used in fraud cases, the actual act of stealing information was tough to punish.
The cybercrime bill changes this by making the act of stealing information a crime.
Needs at speed
“Another highlight of the bill is the speed at which things such as hate speech and revenge porn can be dealt with,” Fick explains. While the Harassment Act of 2001 does cover protection from harassment it couldn’t adequately cover instances where the harassment was occuring online.
Simply put, so long as law enforcement is given the tools, cyberbullies and those sharing intimate photos of others are in line for legal action should the bill be passed in its current form. Fick also says that requests to take down images, video or indeed any other content that is considered harassment can happen a lot faster than it currently does.
What is most important about this bill is that it would make the act of posting revenge porn a criminal offence where right now it’s often tried as a civil offence.
How your ISP will treat you
The Cybercrimes Bill also places a lot of responsibility on electronic communications providers. While these responsibilities don’t actually force banks, telcos and ISPs to actively police their networks they have an obligation to inform authorities should they suspect any activity that contravenes the act is happening on its network.
“It places a duty to report as well as a duty to preserve evidence so that the police can come and investigate. That’s going to be contentious because how long should you wait for the police? There’s cost involved in preserving data,” Fick tells us.
Before the Bill was presented in its current form firms faced a R10 000 fine for everyday that they discovered an infringement and failed to report it. The fine would have been capped at the day that the infringement was reported. The new punishment is much more lenient and while firms may still be fined that fine is capped at R50 000.
Listening to the executive speak about the bill my fears about a policed internet subsided slightly and it began to dawn on me that perhaps all this bill was really doing was merging the real world and the digital world.
Like many detractors of the cybercrimes bill my initial reaction was “the government is trying to steal my freedom”.
After reading through the bill as it stands now and seeing how popular acts such as hate speech and revenge porn are becoming locally it’s clear that South Africa needs this bill, if not for anything else to protect those that haven’t been able to get the protection they need.
Since the Bill was first introduced it has been clarified and tweaked into the document it is today and many stakeholders are in agreement with what the bill seeks to address. Indeed many have said that the proposed legislation is more practical.
The future of South African cyberspace then seems to be a lot fairer while still addressing the issues that leave many feeling unsafe.[Main Image – CC BY 2.0 HowToStartABlogOnline]