The President has finally signed the Cybercrimes Bill into law after a long legislative process. The Cybercrimes Act (the Act) focuses mainly on criminalising the interference with computer systems and data, which is described in more detail in Andrew Marshall’s article on the subject.
However, the Act also has bearing on the way we use (and often abuse) social media which will have an impact on the general public. What you share on social media platforms, including WhatsApp and WhatsApp groups, could now land you in jail if we consider the sections relating to “malicious communications” in the Act.
The Act now criminalises certain actions which will specifically impact social media usage, including disclosing an electronic data message which:
- incites damage to property belonging to or violence against a person or a group of persons (Section 14); and
- threatens a person or a group of persons with damage to property or violence and a reasonable person in possession of the same information, with due regard to all the circumstances, would perceive the message, either by itself or in conjunction with any other message or information, as a threat of damage to property or violence to a person or group of persons (Section 15).
“Violence” in this case means any bodily harm and “damage to property” means damage to any corporeal or incorporeal property.
It is important to note that the definition of ‘‘disclose’’ in these sections is also very broad and includes:
- sending the data message to a person who is the intended recipient of the electronic communication or to any other person;
- storing the data message on an electronic communications network, where the data message can be viewed, copied or downloaded; or
- sending or otherwise making available to a person, a link to the data message that has been stored on an electronic communication network, where the data message can be viewed, copied or downloaded.
This covers all Facebook, Twitter, Instagram and Tik-Tok posts, retweeting or sharing social media posts as well as sending and sharing of messages on WhatsApp. All of these electronic communications now fall squarely within the ambit of the Act and will be criminal offences they incite or threaten violence or damage to property. Every time you forward that WhatsApp “dodgy” chain message inciting violence to a specific group of people; you are committing a criminal act.
Naturally if your posts or messages are merely hate speech, defamation or bullying without inciting or threatening violence or damage to property, that will not fall under these sections. That does not mean it won’t still land you in legal hot water under other legislation. Remember, hate speech is already a criminal offence in its own right.
A further important offence created by the Act, is the disclosure of a data message which unlawfully contains an intimate image without the other person’s consent (Section 16).
Revenge porn and the unlawful sharing of a former (or current) partner’s nude or sexually explicit images is already dealt with quite substantially in the Films and Publications Amendment Act 11 of 2019 but more legislation on this issue is always welcomed.
In terms of the Act, an “intimate image” means a depiction of a person:
- either real or simulated (i.e. can be a cartoon or a drawing);
- made by any means (i.e. painted, captured on film, made electronically, etc.);
- in which such a person is nude, or the genital organs of the person is displayed (and this includes if such genital organs are covered);
- if the person displayed retains a reasonable expectation of privacy at the time that the message was created or sent;
- which violates the sexual integrity or dignity of the person;
- or amounts to sexual exploitation.
It is much more than just sharing a nude photo. If the person who is displayed in the message, either fully clothed or not, has his or her right to privacy or dignity infringed by this image, this section will apply.
The Act also allows for the protection of the person who is the victim of this offence by not limiting the ambit to someone who is easily identifiable in the image, but to also include a person who is described in the text of the message as being displayed in the image, irrespective of the fact that the person cannot be identified, and any person who can be identified from other information in the message.
So, it will not only be an offence of the person’s face is in the picture, but also if you say the person’s name in your message or if the person can be identified by other information in your message or tattoos or clothing for example.
Any person who contravenes the provisions of section 14, 15 or 16 will be liable on conviction to a fine or imprisonment for a period not exceeding three years or both a fine and imprisonment. These are serious consequences.
In light of the above, not only should you be worried about the legal consequences of defaming, harassing or cyberbullying others on social media, you should also consider whether the messages you are sending, sharing, saving on your phone or forwarding will be considered criminal offences in terms of the Act.
If you are the victim of a crime on social media or are accused of any of the conduct listed above, feel free to contact our social media law department for guidance and assistance.