New law targets online criminals

When the world entered the 21st century technological reasoning power became increasingly sophisticated, and so did cyber-crime.

Online misdemeanour, commonly referred to as cyber-crime, is a new type of criminal activity which started rearing its ugly head in the early 1990s as the Internet became a common place for online users worldwide.

But the long arm of the law is catching up with those who commit cyber-crimes.

After many years of legal uncertainty, Parliament has enacted the Electronic Communications and Transactions Act (ECT), which comprehensively deals with cyber- crimes.

Before the enactment of the ECT, common law and statutes could be extended as widely as possible to arrest and successfully prosecute online offenders.

Sizwe Snail of Barend Burgers Attorneys said one could easily apply the common law crimes of defamation, indecency (online child pornography, dissemination of child porn), crimen injuria (also known as cyber-smearing), fraud (cyber-fraud), defeating the ends of justice, contempt of court (publishing any court proceedings without the court's permission online or by other electronic means) and forgery to the online forms of these offences.

"The applicability of the common law, however, has its own limitations and narrows significantly when dealing with the crimes of assault, theft, extortion, breaking and entering a premises with the intent to steal, treason, murder and malicious damage to property.

"This caused great uncertainty and courts and prosecutors were not keen to do adventurous prosecutions," he said.

Snails and his colleague, S Madziwe, said the ETC has now created legal certainty as to what may and may not constitute cyber- crime.

Hacking has now been entrenched in our law in s86(1) of the ECT, which makes any unlawful access and interception of data a criminal offence.

This also applies to unauthorised interference with data.

There is also a new form of crime known as the anti-cracking and hacking law, the pair said.

In terms of this law the provision and-or selling and- or designing and-or producing of anti-security circumventing technology will be a punishable offence. So e-mail bombing and spamming is now also a criminal offence.

Madziwe said the ECT had also included the cyber-crimes of extortion, fraud and forgery.

"Cyber-crimes are not limited to the acts contained in the ECT, but there are also other statutes that are applicable in the prosecution of cyber-crimes. For instance, in terms of the Prevention of Organised Crime Act and Fica Act, the prevention of all crimes is highlighted as well as the prohibition of money laundering and other finance-related crimes, which are now carried out online, which may also contravene the Exchange Control Regulations," added Madziwe.

l Also noteworthy is the National Gambling Act and Lotteries Act. In terms of s89 of the National Gambling Act, any form of unlicensed gambling is unlawful and is punishable by imprisonment for a period of two years.

l Similarly, s57 and s59 of the Lotteries Act state that "any unlicensed lotteries or anyone participating in a foreign lottery is liable to a criminal offence".

l Section 86(3) and 86(4) outlaw the cracking of anti-pirating and or security software.

l The sale and-or making available of illegal copies of movies or music online (in formats such MPeg4, DivX, MOV, MP3, WAV and so on) by an individual may be in contravention of the Copyright Act, which prohibits the unlawful copying, decimation and-or distribution of copyrighted works.

l The provisions of the Counterfeit Goods Act may also be applied where the sale of such goods was concluded online.

l The ECT has now created Cyber Inspectors who may enter premises or access information that have a bearing on an investigation.

l Their powers have been well defined in the act, which includes the authority to search premises or information systems, search a person or premises if there is reasonable cause to believe they are in possession of an article, document or record which has bearing on an investigation.