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  Legalwise Wiseup  
  September 2017  

image 1Great internet access comes with great dangers
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In the last couple of years information technology has undergone a rapid evolution. With increased access to the internet, increased dangers emerged. These dangers include: the need for protection of personal information; development of cybercrimes; defences against the intrusion of privacy; and so on.

As most people use the internet as a quick, cheap and easy way to communicate, for example, by way of e-mails, such communication can be easily manipulated, and as a result, certain laws were put into place.

Are there any laws that protect South Africans against the dangers of the internet?

> South Africa is slowly but surely catching up with developing countries around the world when it comes to protecting persons against the dangers of the internet. The following laws are in place, or are going to be in place soon, to protect South Africans:

  • Protection of Personal Information Act (“POPI”) – protecting the personal information of a person by providing when it may be collected, how it may be collected, stored and/or used. POPI has not come in to full force and effect yet.
  • Electronic Communications and Transactions Act (“ECTA”) – applies to electronic communication (information provided electronically by way of e-mail, fax, SMSes and so on), contracts concluded electronically, electronic signatures and the use of these in evidence.
  • Promotion of Access to Information Act – providing a person with a right to access records about him/herself that are held by businesses or the government.
  • Regulation of Interception of Communications and Provision of Communication-Related Information Act (“RICA”) – providing for circumstances in which electronic communication may be intercepted and monitored; a way to verify the identity of persons communicating electronically; and a way to retain their records.
  • Consumer Protection Act (“CPA”) – protecting the rights of a person (“consumer”) who buys goods or services from another (“supplier”) directly or electronically. Cyber Crimes and Cyber Security Bill (“Cyber Security Bill”) – providing for cyber security and the investigation of cybercrimes. The Cyber Security Bill is still open for public comment.

> Breaching any of the above laws may lead to fines and/or imprisonment in certain circumstances.

> The above laws are known collectively as IT law (information technology law) or cyber law.

Are e-mails sent via the internet private?

> Various businesses keep records of information of persons for a variety of reasons. Sometimes information is given voluntarily, for example, by using Facebook, and sometimes when a person is not even aware that his/her information is being collected, for example, by the use of cookies.

> Personal information relates to person's identity, for example, his/her identity number or features, like his/her physical, mental, economic, social, cultural or physiological features.

> E-mails, containing personal information, can be intercepted and/or monitored at any point when sending, receiving or storing. This creates privacy risks.

> A person's constitutional right to privacy is threatened when his/her personal information is collected and/or processed by another. However, a person's constitutional right to privacy may be limited where the collection or processing of personal information is justified or reasonable. For example, where it is necessary to protect a person, or the interest of other persons, such collection and processing may be justified and reasonable, for example, where national security is threatened; for the investigation of a crime; and so on.

> The law provides that before a supplier may collect and/or process the personal information of a consumer, it must obtain the written consent of a consumer, unless the law allows the supplier to collect or process such information. Personal information may only be collected or processed for a specific purpose and period, and the consumer must be informed of such purpose.

What does it mean to “hack” a person's e-mail?

> When a person intercepts an e-mail of another person it is also referred to as “hacking”. Hacking of an e-mail includes: monitoring; reading; and/or diverting an e-mail.

> A person usually hacks another person's e-mail by using a device (spy camera, hacking device or recording device) to make the content available to him/herself or a third person.

> RICA provides that no person is allowed to intentionally hack an e-mail of another, unless there is an exception present. An exception will include: being a party to the e-mail; having consent to hack the e-mail; hacking it for business purposes; hacking it to prevent serious bodily harm; and so on.

May an employer intercept an e-mail on an employee's work computer?

> The e-mails of employees may be intercepted and monitored if they gave their employer consent to intercept their e-mails, or the employer gave its employees notice that their e-mails are going be intercepted and monitored for business purposes.

> An employer may require access to the e-mails of its employees for business purposes and to protect the integrity of its e-mail system from spam, viruses, claims for defamation and so on.

What is “spam” and how can a person stop receiving it?

> The CPA protects a consumer from unwanted e-mails, also called “spam” or “junk”. Spam are e-mails sent in bulk by suppliers to advertise their goods and services.

> A supplier sending the spam must provide a consumer with the option to cancel his/her subscription (“opt-out”) or to remove him/her from its mailing list. When requested, the supplier must also provide a consumer with the identity of the source that provided it with his/her information in the first place.

> If the consumer still receives spam after s/he “opted-out”, s/he may lodge a complaint with the National Consumer Commission.

What is a cybercrime?

> Under the new Cyber Security Bill, cybercrimes include, but are not limited to:

  • Unlawfully accessing and/or intercepting information. For example, unlawfully accessing someone's e-mails to obtain his/her personal and/or financial information to commit fraud.
  • Sending out malware. For example, sending out viruses by e-mail or trojan horses.

> Conducting computer related:

  • Fraud, for example, selling goods that do not exist over the internet.
  • Forgery and faking, for example, forging a document or faking to be someone else to obtain information; this is known as phishing.
  • Extortion, for example, where a person uses an e-mail to threaten another person to meet his/her demands, and if the demands are not met, s/he will do something like disclose the personal details of that person.
  • Spreading information, ideas or theories that promote or provoke hate, discrimination or violence. For example, sending out racist e-mails.
  • Assisting with or attempting any of the above cybercrimes is an offence.

Please note that any names used in this article are for illustrative purposes only.

How can LegalWise assist you? Should you require an explanation of your rights on this topic, please contact your nearest Branch.

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