Sending these messages on WhatsApp could land you in jail

The Cybercrimes Bill has been signed into law by President Cyril Ramaphosa and will now take effect from 1 December 2021.

The bill criminalises sending certain messages on social media in South Africa.

The penalties for sending these messages include a fine and/or three years in prison, according to a report in MyBroadband.

These types of messages are now criminalised in South Africa:

• Messages that incite violence or damage to property
• Messages that threaten violence against anyone or damage to property
• Messages that contain intimate images sent without the subject’s consent. 

According to BusinessTech, other offences include cyber fraud, forgery, extortion and theft of incorporeal property.

“The unlawful and intentional access of a computer system or computer data storage medium is also considered an offence along with the unlawful interception of, or interference with data,” said Ahmore Burger-Smidt, director and head of data privacy practice at Werksmans Attorneys.

The bill was first proposed in 2015 by the Department of Justice and Constitutional Development to address South Africa’s lack of legislation in this area. It was introduced to the National Assembly in 2017.

The proposed bill has undergone several changes since then, with critics saying its implementation would be too broad and too open to abuse. The bill was referred to and passed by the National Assembly and then sent to the National Council of Provinces on 27 November 2018. By 1 December 2020, the bill was finalised.

WhatsApp used to plan SA riots

The Cybercrimes Bill could have been used to jail the instigators of the riots in KwaZulu-Natal and Gauteng in July.

Reports cited senior ANC and security intelligence officials as saying that the instigators of the unrest used WhatsApp and Telegram to carry out their planned attacks.

Screenshots of the messages – shared on Facebook – appear to show that the organised attacks targeted trucks, highways and businesses.

ALSO READ: Cybercrimes Act in the spotlight after WhatsApp used to plan SA riots

What about minors?

According to South African law, anyone under the age of 12 cannot commit a criminal offence and those over the age of 12 have full criminal capacity.

Social media law specialist Emma Sadleir cites the example of a 14-year-old girl from Limpopo who was charged with assault after a victim of bullying died by suicide. The reasoning behind the charge is that a 14-year-old is able to appreciate the consequences of their actions and therefore is able to tell right from wrong.

There are already laws in place when it comes to children sharing illicit content, including nude photos. Under the Film and Publications Act, it’s referred to as sexting.

When minors above the age of criminal capacity are involved in sexting and the sharing of illicit materials, it’s considered a criminal offence under the Sexual Offences Act and dealt with in the same terms as the creation, distribution and solicitation of child pornography.

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Additional reporting by Cheryl Kahla