A draft Cybercrimes and Cybersecurity Bill that has been published by the Department of Justice and Constitutional Development in South Africa has got many human rights activists worried. The bill, which at the moment is up for comment, would for the first time make phishing, spreading malware and ID theft a crime in the country – bringing South Africa more closely into line with international cybercrime norms.
As it stands, South Africa’s constitution does not have any laws in place to deal with cybercrime, and although it is recognized that this should change, many fear that the draft bill is too extensive. One worry is that it hands over an unsettling amount of power to the state’s law enforcement, while others feel that the statutes at times appear beyond reasonable plausibility.
The Electronic Frontier Foundation (EFF) is apprehensive about one clause that would render illegal any (and all) copyright infringements, which considering the penalty is suggested as a three-year prison term is rightly concerning. According to the EFF, the clause is doubly worrying when put into context with the fact that South Africa is at the moment also considering amendments to its copyright laws. Those amendments, staggeringly, include a proposal to make copyrights in South Africa last forever.
The clause in the draft bill that the EFF is worried about is as follows,
‘20. (1) Any person who unlawfully and intentionally, at a time when copyright exists in respect of any work, without the authority of the owner of the copyright, by means of a computer network or an electronic communications network—
- offers for download;
- distributes; or
- otherwise makes available,
any work, which the person knows is subject to copyright and that the actions contemplated in paragraphs (a), (b), (c) or (d) will be prejudicial to the owner of the copyright, is guilty of an offence. (2) Any person who contravenes the provisions of subsection (1), is liable on conviction to a fine or imprisonment not exceeding three years or to both such fine and imprisonment.’
After having seen the clause in the draft bill, it becomes clear why the EFF is so perturbed. Section 20 has managed to criminalize just about anything that a person could do online with a copyrighted work. The only thing that is left legal in fact is uploading and downloading copyrighted works for personal use. Jeremy Malcolm, Senior Global Policy Analyst at EFF, explains why in the modern world this is both unrealistic and unenforceable,
‘The offense requires that you know that the work is subject to copyright, and that you don’t have the copyright owner’s authority to put it online—however there so many instances in which copyright owners tolerate their works being published online that this could criminalize an entire generation of fans and remixers.’
Mr. Malcolm also takes issue with the portion of the clause that says copyright offenders will themselves know that uploading a copyrighted work ‘will be prejudicial to the owner of the copyright.’ Rightly asking the question ‘how will prejudice be measured?’
‘If we were to listen to the copyright lobby, every time a work is downloaded without authorization, the owner loses a sale. Are users expected to believe these exaggerated claims? Or, conversely, if the user doesn’t believe that the copyright owner suffered any material prejudice, would a court accept that at face value?’
Just as worrying as the copyright issue, the bill gives the South African State Security Agency the right to investigate, access, search and seize just about anything it sees fit during an investigation. Disturbingly, with verbally sanctioned warrants deemed adequate for law enforcement to carry out any action that it feel is necessary. Understandably, this lack of a need for a judge has got people concerned about potential abuse.
With the possibility of 3 years in prison just for uploading a TV clip to a video sharing website such as YouTube, people are right to be concerned. Whether the law would be enforced so strictly in practice is not clear, and is no doubt an issue that the EFF will be wanting to be made clear in the final draft. Anyone with comments on the draft is expected to communicate with the South African Department of Justice by the deadline of November 30. EFF says it is currently reviewing the entire document and plans to make its concerns known within that time limit.
As always, anyone who is considering carrying out any action online that could be deemed illegal is advised to watch one’s step, and guard their digital footprint with a secure VPN. South Africans who are worried about these developments, and fear having to miss out on hugely popular pirated shows like Game of Thrones (most pirated TV show of the last few years) might want to take a look through our list of 5 best VPN’s for South Africa.