Tuesday, 13 November 2018

New Cybercrime Law

After much debate and delay, South Africa’s new cybercrime laws are close to promulgation. Last week, on 7 November 2018, the Justice and Correctional Services committee approved the latest version of the legislation – now known as the Cybercrimes Bill B6B-2017.

This is the third main version of the law, and its primary goal is to criminalise various forms of cyber-crime, and to provide for the conviction of cyber-related criminals. For example, hacking, using software to try hack another’s system, interfering with or modifying data, cyber related fraud, extortion and other related cyber-criminal offences. 

The main changes from the previous B6-2017 version are:

  • The Bill no longer makes provision for cyber response infrastructure such as a 24/7 point of contact, a Cyber Response Committee, and various Government structures supporting cybersecurity.  As a result, the law has changed names from the “Cybercrimes and Cybersecurity Bill” to the “Cybercrimes Bill”

  • Subtle changes to the sections relating to malicious communications to ensure South Africa is keeping up with technological development and changes in communication methodologies.

The new version of the Bill is now pending before the National Assembly, and will likely get the required approval before being sent to the National Council of Provinces as a final rubber stamp, before the final step of the law being signed by the president.  We could well see this legislation being signed into law in the first half of 2019. 

Once the Cybercrimes Bill is fully effective, revenge pornography will be a criminal offence.  What is revenge pornography?  Briefly, it is where an intimate image (or video) is captured with the person’s consent. Sometime thereafter, the intimate image is published without that person’s consent – usually, to exact some form of revenge or cause that other person harm and/or embarrassment.  

Although victims of this conduct do have legal remedies as the law stands (Protection from Harassment Act, defamation, criminen injuria to name a few), the promulgation of the Cybercrimes Bill will provide specific relief to victims of this nature.  Upon conviction, the penalty will be a fine, or to imprisonment for a period not exceeding three years, or both.

Further, to supplement the common law of incitement (provoking unlawful behavior), section 14 and 15 of the Cybercrimes Bill will criminalise any electronic message that incites damage to property or that incites any violence.  Further, it will be a criminal offence to threaten any person with damage to property or violence.

There have always been consequences attached to deviant conduct online – the net is now tightening further…

Friday, 7 September 2018

Human Trafficking & Social Media Safety

Over the past few weeks, a series of child abductions, kidnapping attempts, and missing children cases have dominated the South African media. Human trafficking has suddenly become a hot topic of conversation, and a very real concern.
Several fake WhatsApp messages, voice notes, hoax calls to SAPS, and numerous social media posts are causing mass hysteria.
A recent voice note circulating on social media, claims that SAPS have confirmed that human traffickers are scouting WhatsApp profile pictures and social media networks, to identify and track children, who are then sold via a bidding process. I have noticed several panic-stricken parents, rushing to remove pictures of their children off all social media platforms.
While some of these messages might be fake, human trafficking is indeed very real and we can never be too careful. I therefore strongly encourage parents to take these precautionary steps on all their social media platforms:
1. Ensure that all of your contacts and friends, on social media platforms, are personally known to you.
2. Utilise the highest possible privacy settings, so that the content you share is only visible to people on your friends list.
3. Disable GPS services, so that where and when your photographs were taken, cannot be tracked (unless there is a specific reason for a geo location service to be enabled).
4. Limit what your share, and never share sensitive, private information that could enable an individual to ascertain exactly where you live, or where your kiddies go to school.
5. Qualify what you share - try verify that the content is true before you pass along. Fake news causes unnecessary panic, and is a waste of valuable crime fighting resources.
Remember you should always act the same online as you would in the real-world, so be sure to take similar precautions online that you would in real-life.

Monday, 16 July 2018

Copyright: the basics for small business owners and app developers

I’m regularly asked by developers and small business owners – who owns the copyright in my new app? The answer, as with most legal questions is: ‘it depends’. South Africa’s Supreme Court of Appeal in 2008 noted that copyright cases relating to computer programs are notoriously difficult.  

In South Africa, copyright is regulated by the Copyright Act 98 of 1978. In order for copyright law to protect an app, it must meet a few basic requirements.   The app must:

1) be original

2) take some material form (no copyright protection for ideas or concepts); 

3) be created by a qualified author (this means the creator of the app, if an individual, is a South African citizen or is domiciled or resident in South Africa).

Importantly, copyright vests automatically and no formalities exist – therefore, there is no copyright registration for the creation of a new app.   

Remember: authorship of work that enjoys copyright, and ownership of work that enjoys copyright are two separate considerations.  Who is the author?  Usually, the person who created the work (developed or created the app).  South Africa uses the terminology ‘exercised control’ over the creation of the app – in simple terms, this is typically the person who developed or created it.

Who is the owner? Generally, the owner of the copyright is the author of the work – but not always, particularly where an employee creates an app during the course of his or her employment, or where an app developer is commissioned to develop an app and assigns the copyright in writing to the person who paid for its development (a standard term in a contract of this nature).

From the perspective of an app developer, it is important to ensure that you consider whether it is fair in the circumstances to assign the copyright to the person paying for the development.  Is the payment enough? From the perspective of a person commissioning an app or any development – crucially – you must sign an agreement with the developer whereby you specifically agree to pass ownership of the copyright, or ownership will remain with the author. 

In addition, if the work created does not qualify as a computer program – for example, the look and feel of a certain app, or code created that may not qualify as a complete app, that work may still be protected as a literary work or an artistic work.  

Ultimately, with a business on the line, or a potentially valuable copyright to protect, it is in the interests of both parties to carefully consider copyright ownership, agree on a fair, mutually satisfactory position, and then record this in written, clear agreement.