The Cybercrimes and Cybersecurity Bill (“the Bill”) is open for public comment until 30 November 2015 and aims to establish a legislative framework which will govern cyber-related offences. The Bill defines and creates offences and allows the imposition of penalties for contravention. It also seeks to regulate and supervise investigations, searches, access and powers of seizure.
Usenet and Torrents are two of the most common ways of illegal distribution of copyrighted material on the internet.
Section 20 provides that any person who unlawfully and intentionally sells, offers for download, distributes or makes available any work, without the authority of the owner, is guilty of an offence if his actions are prejudicial to the owner. The penalty is a fine or imprisonment not exceeding three years or both a fine and imprisonment.
The wording of the above section does not explicitly include the making of torrent files available, which in itself is not the copyrighted work, but merely a file directing clients to users providing the copyrighted work for download. However, it should be cautioned that the wording “makes available any work” may be found to be broad enough to include the making of torrent files available to internet users.
Section 20 on its own would not have been of much use as Section 14(d) of the Constitution guaranteed a person’s right to the privacy of their communications. The legislator however, in Section 64, provides for a “General obligation of electronic communications service providers and liability”, which consequently blocks the Government from directly monitoring a person’s data usage while maintaining a degree of control.
Section 64(2) places an obligation on the service provider who is aware or learns of an offence being committed on its network to inform the correct authorities and preserve information which shows the communication’s origin, destination, route and underlying services. A service provider will be fined R10 000.00 a day if it fails to comply with this obligation.
Usenet servers, as opposed to the torrent system which is a person-to-person system, are hosted by service providers. It is self-evident that the provider should know of the content being distributed through it. Being aware and not taking steps imposed in this Bill could result in significant penalties.
It is, however, important to note that the service provider must be found to have been aware of the commission of an offence , there being no obligation is on it to actively monitor users. The Bill, if passed, will bring radical changes to the manner in which the internet is used in South Africa.