Written by Natasha du Preez
26 April 2023

In the current climate of digitalisation, a worldwide revolution has created a massive surge of technological and digital advances. This vast and ever-growing cyberspace, while beneficial for the most part, has also created a multitude of global legal problems. These new-age legal problems create a dire need for new-age solutions and legislation that will enable the South African legal system to govern the rights of South African citizens by addressing legal aspects and implications in relation to, but not limited to, intangible assets, social media, electronic communications and transactions, and ultimately the acceleration of information relating to technical principles of the internet.
This article will take a closer look at the various fields of law, legal principles, and legislation that have been put in place to govern South Africans’ behaviour online.

What is the Internet?
The internet is a wonderous sensation described as an “information system” with a fast-paced and dynamic developmental capacity.
The Internet is described by the Electronic Communications and Transactions Act 25 of 2002 as “the interconnected system of networks that connects computers around the world using TCP/IP and includes future versions thereof.”

The internet encompasses many forms and functions, which is why it has become such a worldwide wonder. The Internet is an easily accessible gateway for information, telecommunication, and electronic transactions globally, connecting individuals all over the world with the click of a button and in the comfort of their own homes.

What does the Information and Communication Technology Law Consist Of?
Information and Communication Technology (ICT) Law can be described as “cyber law,” and it consists of various fields of law as well as a vast array of legal principles, including:

  • Civil proceedings
  • Criminal Proceedings (Cyber Crime)
  • Telecommunications Law
  • Patent Law
  • E-Commerce
  • Domain names and infringement of trademarks on the Internet
  • Copyright Law and IT
  • Data privacy law
  • Freedom of expression.
  • Defamation, pornography, and hate speech online
  • Protection of Personal Information
  • Evidential law in relation to Civil and Criminal Proceedings
  • Taxation Law
  • IT Risk Management and Cybersecurity
  • Alternative Dispute Resolution
  • International Law

Which South African Legislation governs Cyber Law in South Africa?
Since the internet is a massive aspect of our daily lives, its acceleration and development over the last decade have given rise to different and, in some cases, unaddressed, complex legal problems and disputes in need of legal governance.
Therefore, it is only natural that legislation needs to govern and address these legal aspects. The main legislative acts that currently govern cyber law are detailed below.

What does The Cyber Crimes Act 19 of 2020 govern?
The Cyber Crimes Act 1 of 2020 specifically governs and regulates cybercrime. This fundamental, new approach to cyber law has been promulgated for the detection, prevention, mitigation, and investigation of a vast array of cybercrimes. This act governs offences in relation to cybercrimes and enforces harsh punishments and sanctions on the offenders.

What does the Electronic Communications and Transactions Act 25 of 2002 govern?
This Act governs electronic communications in various forms, including electronic mail, SMS, and data messages, as well as other matters relating to cybercrime, domain names, cyber inspectors, and the limitation of liability of internet service providers (ISPs).

This Act also addresses matters that were subject to legal uncertainty prior to its enactment, such as the status of “incorporation by reference agreements”, namely “clickwrap agreements”, as well as the formation of electronic contracts and the legal validity thereof in terms of E-Commerce and evidential Llaw
Some of the most developed countermeasures against cybercrimes in relation to offences such as data interception, data modification, data interference, spreading of viruses as cyber-attacks, and “denial of service” attacks are contained in this act.

The act also endeavoured to address and govern the newly arising electronic adaptations of common law offences relating to data, such as fraud, extortion, and forgery, by attaching heavy sanctions to the abovementioned offences.

What does the Protection of Personal Information Act 4 of 2013 govern?
The Protection of Personal Information Act 4 of 2013, or the POPI Act, governs and promotes the protection of personal information that is processed by both private and public bodies.

The POPI Act achieves the aforementioned goal by promoting the privacy and information protection rights of individuals in a very strict manner, with heavy sanctions for non-compliance with the Act for both individuals and corporations.

What does The Promotion of Access to Information Act 2 of 2000 govern?
This Act governs, promotes, and facilitates access to information in the public and private sectors in order to promote the South African citizens’ constitutional right of access to information as promulgated in Section 32 of the Constitution of the Republic of South Africa.

What does The Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 govern?
This Act governs and prohibits the non-consensual interception, surveillance, and monitoring of electronic communications by third parties.  Such interception can include monitoring devices used to monitor direct communications between parties.

The diversion or examination of the contents of indirect communication between parties is also governed by this Act; for example, any communication via telephone, text, radio frequencies, data messages, images, or registered posts.

There are statutory exemptions to this prohibition under the Act, however, such exemptions are subject to strict conditions.

What do The Criminal Procedures Act 51 of 1977 and The Civil Proceedings Evidence Act 25 of 1965 govern?
Both of these acts govern the admissibility of electronic evidence, electronic signatures, and electronic documents in criminal and civil proceedings.

What does The Trade Marks Act 194 of 1993 govern?

This Act governs and regulates the registration of trademarks, certification trade marks, and collective trade marks for a 10-year registration period.

What do The Copyright Act 98 of 1978 and The Copyright Amendment Act 9 of 2002 govern?

This Act, along with the amended Act, governs and regulates copywriting relating to the use, control, and distribution of intellectual property works for a period of 50 years. Examples of intellectual property works include:

  • Computer programmes
  • Musical works
  • Artistic works
  • Cinematograph films
  • Literacy works
  • Programme-carrying signals
  • Sound recordings
  • Broadcasts
  • Published editions

Conclusion

As the current position stands, there is already a multitude of legislative acts that address the need for governance of cyber law. These acts are not the end all, be all, but they are surely a good start to proper governance of the ever-evolving cyberspace.

However, with the vast and endless nature of the internet, South African legislation will have to continue its process of evolution in order to effectively meet the growing demand for cyber governance by providing well-formulated legislation that is able to address and regulate the often unanswered and complex legal problems faced by the citizens of South Africa in the virtual space.

For assistance with any cyber law-related queries, contact Burger Huyser Attorneys for a consultation with one of our cyber law specialists.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE