President Cyril Ramaphosa recently signed the Cybercrimes Act into law to protect the country against cybercrimes. The Act introduces malicious communications as a crime and guilty parties could incur fines or face jail time. Now that several sections of the Act have commenced, the recent civil unrest in Kwa-Zulu Natal and Gauteng signals the urgency to regulate malicious communications to prevent violence and damage to property. The law still provides other measures to curb public violence, threats to harm someone, and civil unrest.

What is malicious communication?

It is a crime to send out a data message:

  • which incites damage to property, or violence (including bodily harm) (sections 14),
  • that threatens people with damage to property or violence (sections 15),
  • that discloses an intimate image of someone without their consent (sections 16).

Here are a few examples of a disclosure:

  • sending a data message to another person,
  • storing a data message on a network, where others can view, copy or download it, or
  • forwarding a link to a data message from a network, where others can view, copy or download it.

What happens if you send out a malicious communication?

It is a serious crime to forward malicious communications to others. If you send a data message that incites violence, threatens to harm others, or contains an intimate image of someone without their consent, someone could lay a charge against you with the local police.

The Act empowers courts to grant protection orders to complainants pending the outcome of criminal proceedings. Courts can also order electronic communications service providers to remove or disable access to a malicious data message. The Court can also order any electronic communications service provider to disclose the details of those who send out malicious communications.

You could face a fine or jail time of up to three years or longer if a court finds you guilty of sending out malicious communications.

Under the common law, people can get protection orders if they feel threatened or if someone causes them harm. They may also be able to get interdicts to protect themselves against threats or imminent harm.

Incitement in the context of civil unrest

In November 2020, the Constitutional Court handed down a judgment citing certain crimes now listed in the Cybercrimes Act. In Economic Freedom Fighters v Minister of Justice and Correctional Services, the Court recognised the need for incitement as a crime. The Court held that incitement must lead to “serious offenses” such as murder, rape, armed robbery, fraud, and corruption. The Criminal Procedure Act also recognises offenses like public violence and breaking and entering with intent to commit an offense. These offenses are in line with those listed in the Cybercrimes Act and are seen as serious.

Once the Cybercrimes Act commences, it will be a crime to send WhatsApp messages or create social media posts that threaten to harm others, or results in violence. If you hold a position of power and you use your large following to send out harmful messages, you will be accountable for your actions because it could be seen as incitement. This scenario played out on 14 July 2021, when the Democratic Alliance lodged a complaint against Julius Malema, and Jacob Zuma’s children for using their influence to incite violence through social media platforms. We will soon see how courts apply the law to resolve the complaint.

Cybercrime is a trending topic online, especially since the recent civil unrest in the country. Although the Cybercrimes Act is yet to commence, people can still face charges of sedition or high treason. According to a news article, those who incited violence and looting in Kwa-Zulu Natal and Gauteng could face prison sentences of between six months and thirty years if they are found guilty of inciting violations of lockdown regulations or high treason using WhatsApp.

Actions you can take

  • Get a deeper understanding of the impact of the Cybercrimes Act on your organisation by attending a half-day online workshop.
  • Ask us to help you determine the impact of cybercrimes on your organisation and the next steps by doing the online Cybercrimes impact assessment.
  • Inform others that it is a crime to send out malicious communications by sharing this post.
  • Get an overview by reading our plain language summary on the Cybercrimes Act and downloading it.
  • Receive future updates or alerts about the Cybercrimes Act and our events by subscribing to the Michalsons newsletter.
  • Learn about the practical impact of the Cybercrimes Act on you by reading our post.
  • Be a responsible citizen by learning what other actions you can take by visiting our main cybercrime law page.