THE rapid growth of technology and the dependence on it have created a headache for law enforcement agencies globally.
The agencies are now expected to trace suspects that could be thousands of kilometres from where they commit cybercrimes. For the longest time, this was a serious challenge, with jurisdiction hampering the success of prosecutions.
With Twitter and Facebook being American social media companies, jurisdiction has always been a concern for the South African justice system. But according to legal experts, in 2022, the law has evolved and this has changed.
Adjunct Professor at the Nelson Mandela University (NMU) and a senior partner at Snail Attorneys, Prof Sizwe Snail ka Mtuze said social media companies that were giving services to users within the South African jurisdiction were bound to the South African courts. Their terms and conditions would usually try to bind jurisdiction in America, for convenience's sake, where no one would ever hold them accountable.
“There are a couple of defamation matters that I’ve done for my clients, where we have been able to successfully get foreign social media companies to submit to our South African courts and to also respect court orders pertaining to taking down defamatory content, to assisting a complainant in getting IP logs (IP addresses of computers that were used to post a comment that is displayed in the comment) and information in order to further pursue whether it is criminally or civilly the perpetrator. So the issue of jurisdiction in 2022 is not an issue anymore,” said Mtuze.
There is a provision in the Cybercrimes Act, for multi-agency and multinational assistance when it comes to prosecuting cybercrimes in South Africa such as child pornography and revenge porn.
Mtuze said there were multinational treaties in place and our cybercrimes act specifically talked about multi-agency engagement in the prosecution of cybercrimes as well.
An interdict for Defamation is a court order to stop you from doing something and you may be sued for money. On whether we have seen successful charges and rulings in South Africa in cases of defamation, Mtuze said there was the EFF versus former finance minister Trevor Manuel case, and the Hanekom versus Zuma case.
“There are successful interdicts that have been granted by our courts in terms of defamation. In the instance of cyberbullying, which must be read together with the Harassment Act, Section 14 and 15 of the Cybercrimes Act does talk about one not being able to use technology to either intimidate one person or threaten one’s property.
“However, the most-used remedy when someone is harassing you, in terms of the harassment act to a local magistrate court, is to give a protection order. Once that protection order is breached, then it becomes a criminal matter,” he said.
Interestingly, he added, Section 20 of the new Cybercrimes Act also mad it clear that a court could interdict anyone who was suspected of using social media to intimidate, threaten, harm or spread revenge porn. The section, however, was not put into commencement on December 1, 2021, when the Cybercrimes Act was passed. Cyber law in itself was not one piece of legislation. There was an attempt in the Electronic Communications and Transactions (ECT) Act to have an omnibus piece of legislation that dealt with e-commerce, cryptography, domain names, and cybercriminality.
“However, the entire body of cyber law is not just in the ECT Act. You’ll find it in the Popia (Protection of Personal Information Act), the Rica (Regulation of Interception of Communications and Provision of Communication Related Information Act), the Cybercrimes Act, and the Copyright Act; you’ll find a lot of references to cyberlaw in many pieces of legislation. Not by virtue of the word cyberlaw being there, but by virtue of the fact that the law has evolved to the extent that we have accepted, in terms of the ECT Ac,t that the functional equivalent principle takes place,” said Mtuze.
Social media law expert and founder of The Digital Law Company Emma Sadlier deals with laws such as defamation; privacy; crimen injuria (an infringement on someone’s dignity); hate speech; racism; homophobia; xenophobia; employment law, which deals with cases of people getting fired because of what they posted on social media; data protection; and intellectual protection, which includes people’s images, revenge pornography and image-based violence.
She said the 2018 Adam Catzavelos case was an example and a reminder of how jurisdiction wasn’t an issue anymore.
“While Catzavelos may have made defamatory statements using the K-word while at a beach in Greece, the effect was felt here because South Africa has a unique relationship with the K-word as it is a hypersensitive word in this country while in other countries it may not be. So, because of the trans-jurisdictional nature of the internet, what you publish from wherever you are, it can be seen everywhere,” said Sadlier.