Since its release, the Cybercrimes and Cybersecurity Bill has come under intense scrutiny for being too general in its approach. As its members are deeply affected by the provisions in the bill, the IAB South Africa has prepared substantial submissions for consideration by government.
While the intentions of the bill are ostensibly to curb the activities of online terrorists and other cybercriminals, the definitions risk inadvertently turning an ordinary user into a criminal.
The bill places excessive limitations on online freedoms such as the right to access information, right to privacy, and the right to freedom of expression and opinion. We take the matter seriously because IAB South Africa members involved in journalism and publishing in particular will be prejudiced. These sectors require access to information, particularly as they promote access to timely news, information insights and availability of knowledge. The inclusion of excessive sentences for accessing state information, for example, can be regarded as a means to ensure stakeholder self-censorship, which is unwelcome in a democratic society.
The bill, as it currently stands, is too broad and does not provide for exceptions to accessing and disseminating information on the basis of public interest. This is contrary to the Promotion of Access to Information Act and goes against the values that underpin our constitution. These include the right to access to information, and freedom of expression and opinion. The limitations on the right to dissemination of information could have a considerable impact on online journalism and online publishing. According to the provisions in the bill, information can be unduly restricted from dissemination, with the resultant unreasonable limits freedom of speech.
The bill also broadens the definitions of copyright and creates requirements that do not exist in current copyright law. Currently, legitimate activities related to the access and use of copyrighted works would be criminalised under the bill. The definitions in the bill are also at odds with the existing Electronic Communications Act and the Electronic Communications and Transaction Act.
Where the bill is problematic in regard to copyright is in its approach to mitigation of copyright violations. One could potentially be prosecuted, even where legitimate reasons to use the copyrighted work exist, or the owner gave tacit consent to use the work. Tacit consent is particularly relevant in digital access and use of copyrighted works where express authority of the owner is not present.
The IAB South Africa appreciates the need for the regulation of cybercrime in particular, and cybersecurity in general. Our members stand to benefit from several protections provided for in the bill, and the reform of outdated legislation with limited scope of protection is welcomed. However, the bill requires a number of exceptions to ensure that it will not frustrate the workings of a thriving digital economy in South Africa.
- Pria Chetty is director of technology law and policy firm EndCode and member of the IAB’s regulatory affairs council