Legal Articles

South Africa introduced the Cybercrimes Act 19 of 2020 when it was signed into law in May 2021, but is yet to come into operation. The need for such a law in its form is open to discussion by all stakeholders but there is general consensus of the need to create a regulatory framework to curb the scourges that it was promulgated to provide for and advance cyber security.

The use of technology, internet, computer and mobile programmes is fast growing in many parts of the world, and this has in turn came with risks and challenges associated with criminal activity on the cyberspace. Ransomware attacks, electronic fraud and extortion, unlawful handling of data on computer systems are prevalent on most computer programmes and in electronic communication. The Cybercrimes Act brings a reprimand to some cyber actions which it recognizes as offences.

• Cyber fraud
• Forgery
• Extortion
• Ransomware
• Hacking
• Unlawful interception of data
• Unlawful acquisition, possession or receipt of passwords and access codes

The above are but some of the crimes that are provided for in the Cybercrimes Act. Unlawfully accessing computer systems or programmes will also be an offence if done intentionally and without just cause.

While the Cybercrimes Act seeks to provide for actions that will be considered as offences in the cyberspace, the Protection of Personal Information Act 4 of 2013 (POPIA) on the other hand deals with data privacy. POPIA places obligations on institutions that collect, process and store personal information of data subjects to comply and adhere to 8 conditions for lawful data processing being accountability, processing limitation, purpose specification, further processing limitation, information quality, openness, security safeguards and data subject participation.

While the relationship between these two Acts (POPIA and Cybercrimes Act) is closely related, challenges may be found when these need to be implemented in a situation of urgency side by side, so as not to impede privacy while pursuing security or vice versa.  Rights to privacy, dignity and freedom of the person may clash against the Cybercrimes Act investigative procedures in a way that might not have been anticipated in the above scenario.

However, as per the Cybercrimes Act, failure by responsible parties to adhere to the 8 conditions in POPIA will be dealt with enforcement procedures of POPIA. In this way, the Cybercrimes Act and the POPIA work in tandem to achieve security within the perspectives of privacy.

Information quality which is a condition under POPIA requires that the integrity of the information retained must be given effect to. This means that the information must be free from interception, damage, breach, deletion and interference from parties who are not authorised to do so.

Therefore the purposes of POPIA and the Cybercrimes Act are related and in cooperation, as privacy is achieved if cyberspace is secure.

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