Welcomed new legislation to protect victims of cyber abuse

Provided by Fluxmans Attorneys

By Jerome Levitz

Topics Constitutional Law & Civil Rights | Criminal Law | Technology Law

25 Feb 2022

Cyber abuse, revenge porn and teenagers abusing their peers by way of cyber bullying, is an all too familiar occurrence these days. Can you imagine how terrified and emotionally distraught a victim must be when opening a WhatsApp that reads “unless you pay me R5000 I will post your nude pictures online”?

Cyber abuse can cause severe emotional stress and strain with the victims often considering and, in some instances taking, their own lives. The cowardly perpetrators who are faceless and nameless frequently get away with their conduct because technology evolves much faster than the laws which are in place to protect people against such abuse.

The much-anticipated Cybercrimes Act No. 19 of 2020 (“the Act”) came into effect on 1 December 2021. The purpose of the Act is to, inter-alia, criminalise the disclosure of data messages which are harmful and to provide for interim protection orders to be granted pending the outcome of criminal prosecutions.

Section 16 of the Act states:

16. Disclosure of data message of intimate image — (1) Any person (“A”) who unlawfully and intentionally discloses, by means of an electronic communications service, a data message of an intimate image of a person (“B”), without the consent of B, is guilty of an offence.
(2) For purposes of sub-section (1) —
(a) “B” means —
(i) the person who can be identified as being displayed in the data message;
(ii) any person who is described as being displayed in the data message, irrespective of the fact that the person cannot be identified as being displayed in the data message; or
(iii) any person who can be identified from other information as being displayed in the data message; and
(b) “intimate image” means a depiction of a person—
(i) real or simulated, and made by any means in which—
(aa) B is nude, or the genital organs or anal region of B is displayed, or if B is a female person, transgender person or intersex person, their breasts, are displayed; or
(bb) the covered genital or anal region of B, or if B is a female person, transgender person or intersex person, their covered breasts, are displayed; and
(ii) in respect of which B so displayed retains a reasonable expectation of privacy at the time that the data message was made in a manner that—
(aa) violates or offends the sexual integrity or dignity of B; or
(bb) amounts to sexual exploitation.

The steps victims can take

It is advisable that anyone who is the victim of a cybercrime immediately lays a criminal charge with SAPS and then approaches the court in terms of the provisions of Section 20 of the Act.

Section 20 enables a complainant to approach the court on an ex parte basis (without having to give any notice) and to apply for a protection order pending the finalisation of the criminal proceedings to:

“prohibit any person to disclose or further disclose the data message which relates to the charge (Section 20(1)(a)); or
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 (Section 20(1)(b)).”

Once granted, the protection order is to be served on the person alleged to be behind the cybercrime (if the identity of the person is known) alternatively, on the electronic communications service provider. The person on whom the order is served is given 14 days to apply to the court for the setting aside or amendment of that order. On the return date, and after having satisfied itself that an offence has occurred in terms of the Act, the court must order:

that person to refrain from further making available, disclosing or distributing the data message;
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;
an electronic communications service provider to remove or disable access to the data message in question.

Failure to comply with this court order constitutes an offence and on conviction the offender may be liable to a fine or to imprisonment for a period not exceeding 2 years or to both a fine and such imprisonment.

It is hoped that the Act will assist victims of cybercrimes and hold their abusers fully accountable for their unacceptable conduct.