Tag: malicious communications

Section 13 | Definitions

  1. In Part II, unless the context indicates otherwise—
    1. ‘‘damage to property‘‘ means damage to any corporeal or incorporeal property;
    2. ‘‘disclose’’ in respect of a data message referred to in sections 14, 15 and 16, means to—
      1. send the data message to a person who is the intended recipient of the electronic communication or any other person;
      2. store the data message on an electronic communications network, where the data message can be viewed, copied or downloaded; or
      3. send or otherwise make available to a person, a link to the data message that has been stored on an electronic communication network, where the data message can be viewed, copied or downloaded;
  1. ‘‘group of persons’’ means characteristics that identify an individual as a member of a group, which characteristics include without limitation, race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth or nationality;
    ‘‘related person’’ means any member of the family or household of a person or any other person in a close relationship with that person; and
    ‘‘violence‘‘ means bodily harm.

Section 15 | Data message which threatens persons with damage to property or violence

  1. A person commits an offence if they, by means of an electronic communications service, unlawfully and intentionally discloses a data message, which—
    1. threatens a person with—
      1. damage to property belonging to that person or a related person; or
      2. violence against that person or a related person; or
    2. threatens a group of persons or any person forming part of, or associated with, that group of persons with—
      1. damage to property belonging to that group of persons or any person forming part of, or associated with, that group of persons; or
      2. violence against the group of persons or any person forming part of, or associated with, that group of persons,
        and a reasonable person in possession of the same information, with due regard to all the circumstances, would perceive the data message, either by itself or in conjunction with any other data message or information, as a threat of damage to property or violence to a person or category of persons contemplated in paragraph (a) or (b), respectively.

Section 16 | Disclosure of data message of intimate image

  1. Any person (‘‘A’’) who unlawfully and intentionally discloses, by means of an electronic communications service, a data message of an intimate image of a person (‘‘B’’), without the consent of B, is guilty of an offence.
  2. For purposes of subsection (1)—
    1. ‘‘B’’ means—
      1. the person who can be identified as being displayed in the data message;
      2. any person who is described as being displayed in the data message, irrespective of the fact that he or she cannot be identified as being displayed in the data message; or
      3. any person who can be identified from other information as being displayed in the data message; and
    2. ‘‘intimate image’’ means a depiction of a person—
      1. real or simulated and made by any means in which—
        1. B is nude, or his or her genital organs or anal region of B is displayed, or if B is a female person, transgender person or intersex person, their breasts, are displayed; or
        2. the covered genital or anal region of B, or if B is a female person, transgender person or intersex person, their covered breasts, are displayed; and
      2. in respect of which B so displayed retains a reasonable expectation of privacy at the time that the data message was made in a manner that—
        1. violates or offends the sexual integrity or dignity of B; or
        2. amounts to sexual exploitation.

Section 17 | Attempting, conspiring, aiding, abetting, inducing, inciting, instigating, instructing, commanding or procuring to commit offence

Any person who unlawfully and intentionally—

  1. attempts;
  2. conspires with any other person; or
  3. aids, abets, induces, incites, instigates, instructs, commands or procures another person,
    to commit an offence in terms of Part I or Part II of this Chapter, is guilty of an offence and is liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.

Section 18 | Competent verdicts

  1. If the evidence in criminal proceedings does not prove the commission of the offence charged but proves a contravention of section 17—
    1. in respect of the offence charged; or
    2. in respect of any other offence of which an accused may be convicted on the offence charged,
      the accused may be found guilty of the offence so proved.
  2. If the evidence on a charge of a contravention of section 3(1), does not prove the offence or a contravention of section 17 in respect of that offence, but proves a contravention of—
    1. section 2(1) or (2);
    2. section 3(2) or (3); or
    3. section 4(1), in so far as it relates to the use or possession of a software or hardware tool for purposes of contravening section 3(1),
      the accused may be found guilty of the offence so proved.
  3. If the evidence on a charge of a contravention of section 5(1), does not prove the offence or a contravention of section 17 in respect of that offence, but proves—
    1. a contravention of section 2(1) or (2);
    2. a contravention of section 4(1) in so far as it relates to the use or possession of a software or hardware tool for purposes of contravening section 5(1); or
    3. the offence of malicious injury to property,
      the accused may be found guilty of the offence so proved.
  4. If the evidence on a charge of a contravention of section 6(1), does not prove the offence or a contravention of section 17 in respect of that offence, but proves—
    1. a contravention of section 2(1) or (2);
    2. a contravention of section 4(1) in so far as it relates to the use or possession of a software or hardware tool, for purposes of contravening section 6(1); or
    3. the offence of malicious injury to property,
      the accused may be found guilty of the offence so proved.
    1. If the evidence on a charge of a contravention of section 7(1)(a) or (d) does not prove the offence or a contravention of section 17 in respect of that offence, but proves a contravention of—
      1. section 2(1) or (2);
      2. section 7(1)(b) or (c) or (2); or
      3. section 4(1), in so far as it relates to the use or possession of a software or hardware tool to acquire or use a password, access code or similar data or device,
        the accused may be found guilty of the offence so proved
    2. If the evidence on a charge of a contravention of section 7(1)(b) or (c) does not prove the offence or a contravention of section 17 in respect of that offence, but proves a contravention of section 7(2), the accused may be found guilty of an offence so proved.
  6. If the evidence on a charge of a contravention of section 8, does not prove the offence or a contravention of section 17 in respect of the offence, but proves—
    1. a contravention of section 2(1) or (2);
    2. a contravention of section 4(1), in so far as it relates to the use or possession of a software or hardware tool for the purposes of—
      1. interfering with data or a computer program as contemplated in section 5(1); or
      2. interfering with a computer data storage medium or a computer system as contemplated in section 6(1);
    3. a contravention of section 7(1) or (2), in so far as the password, access code or similar data or device was acquired, possessed, provided to another person or used for purposes of contravening the provisions of section 8;
    4. a contravention of section 9(1) or (2);
    5. the common law offence of fraud or attempt to commit that offence;
    6. the common law offence of forgery or uttering or attempt to commit that offence; or
    7. the common law offence of theft or attempt to commit that offence, the accused may be found guilty of the offence so proved.
    1. If the evidence on a charge of a contravention of section 9(1), does not prove the offence or a contravention of section 17 in respect of the offence, but proves—
      1. the common law offence of forgery;
      2. a contravention of section 9(2); or
      3. the common law offence of uttering,
        the accused may be found guilty of the offence so proved.
    2. If the evidence on a charge of a contravention of section 9(2), does not prove the offence, but proves the common law offence of uttering, the accused may be found guilty of the offence so proved.
  8. If an accused is charged with a contravention of section 11(1), and the evidence on the charge does not prove a contravention of section 11(1) or a contravention of section 17 in respect of that offence, but a proves a contravention of—
    1. section 2(1) or (2);
    2. section 3(1) or any competent verdict provided for in subsection (2);
    3. section 5(1) or any competent verdict provided for in subsection (3);
    4. section 6(1) or any competent verdict provided for in subsection (4); or
    5. section 7(1) or any competent verdict provided for in subsection (5),
      the accused may be found guilty of the offence so proved.
  9. If an accused is charged with a contravention of section 11(2) or a contravention of section 17 in respect of that offence, and the evidence on the charge does not prove a contravention of section 11(2), but a proves a contravention of—
    1. section 2(1) or (2);
    2. section 5(1) or any competent verdict provided for in subsection (3); or
    3. section 6(1) or any competent verdict provided for in subsection (4),
      the accused may be found guilty of the offence so proved.
  10. If the evidence on a charge for any offence referred to in the preceding subsections does not prove the commission of the offence so charged or any competent verdict in respect of the offence but proves the commission of an offence which by reason of the essential elements of that offence is included in the offence so charged, the accused may be found guilty of the offence so proved.
  11. If an accused is charged with a contravention of section 14, 15 or 16, and the evidence on the charge does not prove the offence in question or a contravention of section 17 in respect of the offence, but proves the commission of an offence which by reason of the essential elements of that offence is included in the offence so charged, the accused may be found guilty of the offence so proved.

Section 19 | Sentencing

  1. Any person who contravenes the provisions of section 2(1)or (2), 3(3) or 7(2) is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.
  2. Any person who contravenes the provisions of section 3(1) or (2), 4(1), 5(1), 6(1) or 7(1) is liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to both a fine and such imprisonment.
  3. Any person who contravenes the provisions of section 11(1) is liable on conviction to a fine or to imprisonment for a period not exceeding 15 years or to both a fine and such imprisonment.
  4. A court which convicts a person of an offence in terms of section 8, 9(1) or (2), 10 or 11(2) may, where a penalty is not prescribed in respect of that offence by any other law, impose a sentence, as provided for in section 276 of the Criminal Procedure Act, 1977, which that court considers appropriate and which is within that court’s penal jurisdiction.
  5. A court which imposes any sentence in terms of this section, or where a person is convicted of the offence of theft that was committed or facilitated by electronic means, must, without excluding other relevant factors, consider as aggravating factors—
    1. the fact that the offence was committed by electronic means;
    2. the extent of the prejudice and loss suffered by the complainant or any other person as a result of the commission of such an offence;
    3. the extent to which the person gained financially, or received any favour, benefit, reward, compensation or any other advantage from the commission of the offence; or
    4. the fact that the offence was committed in concert with one or more persons.
    1. If a person is convicted of any offence provided for in section 2(1) or (2), 3(1), 5(1), 6(1), 7(1), 8, 9(1) or (2), 10 or 11(1) or (2), a court imposing any sentence in terms of those sections must, unless substantial and compelling circumstances justify the imposition of another sentence, impose a period of direct imprisonment, with or without a fine, if the offence was committed —
      1. by the person; or
      2. with the collusion or assistance of another person,
        who as part of their duties, functions or lawful authority were in charge of, in control of, or had access to data, a computer program, a computer data storage medium or a computer system belonging to another person in respect of which the offence in question was committed.
      3. A sentence imposed in terms of paragraph (a) may not be suspended as contemplated in section 297(4) of the Criminal Procedure Act, 1977.
  7. Any person who contravenes the provisions of section 14, 15 or 16 is liable on conviction to a fine or to imprisonment for a period not exceeding three years or to both a fine and such imprisonment.

Section 20 | Order to protect complainant pending finalisation of criminal proceedings

  1. A complainant (hereinafter referred to as the applicant) who lays a charge with the South African Police Service that an offence contemplated in section 14, 15 or 16 has allegedly been committed against them, may on an ex parte basis in the prescribed form and manner, apply to a magistrate’s court for an order pending the finalisation of the criminal proceedings to—
    1. prohibit any person to disclose or further disclose the data message which relates to the charge; or
    2. order an electronic communications service provider whose electronic communications service is used to host or disclose the data message which relates to the charge, to remove or disable access to the data message.
  2. The court must as soon as is reasonably possible consider an application submitted to it in terms of subsection (1) and may, for that purpose, consider any additional evidence it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of proceedings.
  3. If the court is satisfied that there—
    1. is prima facie evidence that an offence referred to in section 14, 15 or 16, has allegedly been committed against the applicant; and
    2. are reasonable grounds to believe that a person referred to in subsection (1)(a) disclosed the data message in question; or
    3. are reasonable grounds to believe that the electronic communications service of the electronic communications service provider referred to in subsection (1)(b), is used to host or was or is used to disclose the data message in question,
      the court may, subject to such conditions as the court may deem fit, issue the order referred to in subsection (1), in the prescribed form.
  4. The order, referred to in subsection (3), must be served on the person referred to in subsection (1)(a) or electronic communications service provider or person referred to in subsection (1)(b) in the prescribed form and manner: Provided, that if the court is satisfied that the order cannot be served in the prescribed form and manner, the court may make an order allowing service to be effected in the manner specified in that order.
  5. An order referred to in subsection (3) is of force and effect from the time it is issued by the court and the existence thereof has been brought to the attention of the person referred to in subsection 1(a) or electronic communications service provider referred to in subsection 1(b).
  6. A person referred to in subsection (1)(a), other than the person who is accused of having committed the offence in question, or electronic communications service provider referred to in subsection (1)(b) may, within 14 days after the order has been served on them in terms of subsection (4), or within such further period as the court may allow, upon notice to the magistrate’s court concerned, in the prescribed form and manner, apply to the court for the setting aside or amendment of the order referred to in subsection (3).
    1. The court must as soon as is reasonably possible consider an application submitted to it in terms of subsection (6) and may, for that purpose, consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings.
    2. The court may, if good cause is shown for the variation or setting aside of the protection order, issue an order to this effect.
  8. The court may, for purposes of subsections (2) and (7), in the prescribed form and manner cause to be subpoenaed any person as a witness at those proceedings or to provide any book, document or object, if the evidence of that person or book, document or object appears to the court essential to the just decision of the case.
  9. Any person referred to in subsection (1)(a) or an electronic communications service provider, referred to in subsection (1)(b), that fails to comply with an order referred to in subsection (3) is guilty of an offence.
  10. Any person who is subpoenaed in terms of subsection (8) to attend proceedings and who fails to—
    1. attend or to remain in attendance;
    2. appear at the place and on the date and at the time to which the proceedings in question may be adjourned;
    3. remain in attendance at those proceedings as so adjourned; or
    4. produce any book, document or object specified in the subpoena,
      is guilty of an offence.
  11. The provisions in respect of appeal and review as provided for in the Magistrates’ Courts Act, 1944, and the Superior Courts Act, 2013, apply to proceedings in terms of this section.
  12. For purpose of this section and sections 21 and 22 ‘‘to host a data message’’ means to store the data message on an electronic communications network that is used to provide an electronic communications service, where it can be viewed, copied or downloaded.

Section 21 | Electronic communications service provider to furnish particulars to court

  1. If an application for a protection order is made in terms of section 20(1) and the court is satisfied in terms of section 20(3) that a protection order must be issued and the particulars of the person referred to in section 20(1)(a), who discloses the data message, or the electronic communications service provider referred to in section 20(1)(b), whose service is used to host or was or is used to disclose the data message, is not known, the court may—
    1. adjourn the proceedings to any time and date on the terms and conditions which the court deems appropriate; and
    2. issue a direction in the prescribed form, directing an electronic communications service provider, that is believed to be able to furnish such particulars, to furnish the court in the prescribed manner by means of an affidavit in the prescribed form with—
      1. the electronic communications identity number from where the data message originated;
      2. the name, surname, identity number and address of the person to whom the electronic communications identity number has been assigned;
        1. the electronic communications identity number from where the data message originated;
        2. the name, surname, identity number and address of the person to whom the electronic communications identity number has been assigned;
        3. any information which indicates that the data message was or was not sent from the electronic communications identity number of the person to the electronic communications identity number of the applicant;
        4. any information that is available to an electronic communications service provider that may be of assistance to the court to identify the person referred to in section 20(1)(a) or the electronic communications service provider referred to in section 20(1)(b), which provides a service to that person;
        5. any information that is available to an electronic communications service provider which—
          1. confirms whether or not its electronic communications service is used to host or was or is used to disclose the data message in question; or
          2. may be of assistance to the court to identify the electronic communications service provider whose service is used to host or was or is used to disclose the data message in questions; or
        6. an assessment whether or not the electronic communications service provider is in a position to—
          1. remove the data message or a link to such data message; or
          2. disable access to the data message or a link to such data message.
  2. If the court issues a direction in terms of subsection (1)(b) the court must direct that the direction be served on the electronic communications service provider in the prescribed manner: Provided, that if the court is satisfied that the direction cannot be served in the prescribed manner, the court may make an order allowing service to be effected in the form or manner specified in that order.
    1. The information referred to in subsection (1)(b) must be provided to the court within five ordinary court days from the time that the direction is served on an electronic communications service provider.
    2. An electronic communications service provider on which a direction is served, may in the prescribed manner by means of an affidavit in the prescribed form apply to the court for—
      1. an extension of the period of five ordinary court days referred to in paragraph (a) for a further period of five ordinary court days on the grounds that the information cannot be provided timeously; or
      2. the requested information is not available in the records of the electronic communications service provider; or
      3. its service is not used to host or was or is not used to disclose the data message in question.
  4. After receipt of an application in terms of subsection (3)(b), the court—
    1. must consider the application;
    2. may, in the prescribed manner, request such additional evidence by way of affidavit from the electronic communications service provider as it deems fit;
    3. must give a decision in respect thereof; and
    4. must inform the electronic communications service provider in the prescribed form and manner of the outcome of the application.
    1. The court may, on receipt of an affidavit from an electronic communications service provider which contains the information referred to in subsection (1)(b), consider the issuing of a protection order in terms of section 20(3) against the person or electronic communications service provider on the date to which the proceedings have been adjourned.
    2. Any information furnished to the court in terms of subsection (1)(b) forms part of the evidence that a court may consider in terms of section 20(3).
  6. The Cabinet member responsible for the administration of justice may, by notice in the Gazette, prescribe reasonable tariffs of compensation payable to electronic communications service providers for providing the information referred to in subsection (1)(b).
  7. Any electronic communications service provider or employee of an electronic communications service provider who—
    1. fails to furnish the required information within five ordinary court days from the time that the direction is served on such electronic communications service provider to a court in terms of subsection (3)(a) or such extended period allowed by the court in terms of subsection (3)(b); or
    2. makes a false statement in an affidavit referred to in subsection (1)(b) or (3)(b) in a material respect,
      is guilty of an offence.
  8. For purposes of this section ‘‘electronic communications identity number’’ means a technical identification label which represents the origin or destination of electronic communications traffic.

Section 22 | Orders on finalisation of criminal proceedings

  1. Whenever a person is—
    1. convicted of an offence in terms of section 14, 15 or 16; or
    2. acquitted of an offence in terms of section 14, 15 or 16,
      but evidence proves that the person engaged in, or attempted to engage in, harassment as contemplated in the Protection from Harassment Act, 2011, the trial court may, after holding an enquiry, issue a protection order contemplated in section 9(4) of the Protection from Harassment Act, 2011, against the person, whereafter the provisions of that Act must apply with the necessary changes required by the context.
  2. The trial court which convicts a person of an offence contemplated in section 14, 15 or 16, must order—
    1. that person to refrain from further making available, disclosing or distributing the data message contemplated in section 14, 15 or 16, which relates to the charge on which that person is convicted
    2. that person or any other person to destroy the data message in question, any copy of the data message or any output of the data message and to submit an affidavit in the prescribed form to the prosecutor identified in the order that the data message has been so destroyed; or
    3. an electronic communications service provider to remove or disable access to the data message in question.
  3. The order referred to in subsection (2)(b), in so far as it relates to a person other than the person who has been convicted of the offence, and subsection (2)(c), must be in the prescribed form and must be served on the person or electronic communications service provider in the prescribed manner: Provided, that if the trial court is satisfied that the order cannot be served in the prescribed form and manner, the court may make an order allowing service to be effected in the form or manner specified in that order.
  4. Any person contemplated in subsection (2)(a) or (b) or electronic communications service provider contemplated in subsection (2)(c), that fails to comply with an order referred to in subsection (2) is guilty of an offence.
  5. An electronic communications service provider that is ordered to remove or disable access to the data message may, within 14 days after the order has been served on it in terms of subsection (3), upon notice to the trial court concerned, in the prescribed form and manner, apply to the court for the setting aside or amendment of the order referred to in subsection (2)(c).
    1. The trial court must as soon as is reasonably possible consider an application submitted to it in terms of subsection (5) and may for that purpose, consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings.
    2. The trial court may, if good cause has been shown for the variation or setting aside of the order, issue an order to this effect.
  7. The court may, for purposes of subsection (6)(a), in the prescribed form and manner cause to be subpoenaed any person as a witness at those proceedings or to provide any book, document or object, if the evidence of that person or book, document or object appears to the court essential to the just decision of the case.
  8. Any person who is subpoenaed in terms of subsection (7) to attend proceedings and who fails to—
    1. attend or to remain in attendance;
    2. appear at the place and on the date and at the time to which the proceedings in question may be adjourned;
    3. remain in attendance at those proceedings as so adjourned; or
    4. produce any book, document or object specified in the subpoena,
      is guilty of an offence.
  9. For purposes of this section ‘‘trial court’’ means—
    1. a magi strate’s court established under section 2(1)(f)(i) of the Magistrates’ Courts Act, 1944;
    2. a court for a regional division established under section 2(1)(g)(i) of the Magistrates’ Courts Act, 1944; or
    3. a High Court referred to in section 6(1) of the Superior Courts Act, 2013.
  10. Whenever a person is convicted of an offence in terms of section 14, 15 or 16, the trial court must issue an order that the person must reimburse all expenses reasonably incurred by—
    1. a complainant as a result of any direction issued in terms of section 21(1)(b); or
    2. an electronic communications service provider to remove or disable access to the data message in question,
      whereupon the provisions of section 300 of the Criminal Procedure Act, 1977, shall apply with the necessary changes required by the context, to such order.