Tag Archive | department of justice and constitutional affairs

Fresh Cybercrimes and Cybersecurity Bill tackles Internet fraud

…  Revised Bill criminalises cybercrimes …

posted 5 Aug… A new Bill designed to give powers to the State Security, Defence, Police and Telecommunications Ministers to intervene in many aspects of South Africa’s key economic, financial and labour environments and zeroing in on cybercrimes and related offences, is in debate.  It also calls upon the financial sector to assist in tracking down fraudsters.

Offences include the circulation of messages that aim at economic harm to persons or entities; that contain pornography or could cause mental or psychological stress; the Bill calls upon the private financial and communications sector and, more specifically, electronic service providers to assist with its objectives. The Bill will also change much in the way how government and SOEs go about their business to reflect the current call for electronic security.

The revised Bill is re-write of that originally tabled in 2015 and rejected as too convoluted and wide ranging on issues that could cause unintended consequences.

Badly needed

Despite placing considerable onus upon the private sector to assist, the IT industry seems to be guardedly welcoming the debate which is about to commence. The original and rejected Cybercrimes and Cybersecurity Bill was tabled in Parliament last February.

The main comment circulating seems to be that this later version is more specific than its earlier counterpart, provides more clarity and has less weight placed upon tedious operational management factors in state structures designed to fight cybercrime.

The Bill is the product of the Department of Justice and Constitutional Affairs (DoJ) and from what has been said, Deputy Minister John Jeffreys seems to be the state official still running with the legislation. He said at a media briefing some months ago, “This Bill will give the State the tools to halt cybercrimes and trained teams to bring to book those who use data as a tool for their crime.”

Not meant

Originally, when the Bill was tabled in 2015 it caused a storm of controversy. Whilst its objectives to catch criminals and stop the growing invasion institutional attacks were understood, unintended consequences for the media were not foreseen. The new Bill acknowledges that journalists and whistle-blowers have protection under the Protected Disclosures Act.

However, the somewhat draconian powers of seizure of data granted to the authorities will still no doubt worry many service providers insofar as interlocking the proposals into the Protection of Personal Information (POPI) Act and the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) are concerned, it has been suggested in hearings.

However, the Minister and other ministerial portfolios concerned, appear to have weighted their decision upon the growing threat of international cybercrime and have continued to call for service providers to assist with the issue caused by a late start.

SA under limelight

Some IT forensic reports indicate that sub-Saharan Africa has the third highest exposure to incidents of cyber fraud in the world and according to those who published this fact, they also claim that incidences of cybercrimes and cybersecurity breaches are escalating globally at 64%, with more security incidents reported in 2015 than 2014 for South Africa.

South Africa is known to be a specific target for cybercrime involving unlawful acquisition of sensitive data relating to clients and/or business operations due to a very high reliance on internet connections by commerce. Large data storage packages proliferate in SA, it is suggested, ranging from the JSE to the banking sector.

ATMs, bank transfers

In the case again of South Africa as part of sub-Sahara Africa, wire transfer fraud accounts for 26 percent of cybercrimes, far ahead of the global average of 14 percent, South Africans being defrauded of more than R2.2bn each year it is estimated.

Banking and financial institutions in South Africa, it is noted in the preamble to the Bill, are particularly exposed, the Reserve Bank having stated back in 2016, “It would be remiss of us in our duty if we ignored the growing risks emerging from the financial services sector’s increasing reliance on cyberspace and the Internet.”

Definitions

The Bill now before Parliament criminalises unlawful and intentional conduct regarding data, data messages, computer systems and programs, networks and passwords and creates as crimes “cyber fraud, cyber forgery and cyber uttering”.

It criminalises malicious communications – namely messages that result in harm to person or property, such as revenge porn or cyber bullying. The police are given extensive investigation, search and seizure powers in the Bill and an array of penalties, including fines and imprisonment apply, including various prescribed in terms of the Criminal Procedure Act, 1977.

No FICA-type warrants.

It is notable that cyber-crime powers of search and arrest remain with SAPS and not any specific structure or system set up by the new Bill to monitor instances of cybercrime or detect suspicious data attacks.

There remain, however, quite onerous obligations on electronic communications service providers and financial institutions, not only to assist in investigations of cybercrimes but also to report instances of cybercrime. A “framework of mutual co-operation between foreign states” is established in respect international investigation and the prosecution of cybercrime.

Crime fighting structures

The Cybercrimes and Cybersecurity Bill also establishes a Computer Security Incident Response Team, as did its predecessor, to establish contact with the private sector alongside with the already functional Cyber Security Hub responsible to the Minister of Telecommunications and Postal Service.

Finally, on structures, the Minister of Defence is to establish and operate a Cyber Command and appoint a General Officer Commanding.

The Bill also provides for the declaration of what is termed as “critical information infrastructure possessed” by financial institutions – for example databases upon which an attack could possibly represent a national threat.    Debate will no doubt flow around who and who not should report and upon what exactly.

The crimes defined

For the technically minded, the Bill In terms of the Bill, the following activities are criminalised: unlawful securing of access to data, a computer programme, a computer data storage medium or a computer system; unlawful acquisition of data; unlawful acts in respect of software or hardware tools; unlawful interference with data or a computer programme; unlawful interference with a computer data storage medium or computer system; unlawful acquisition, possession, provision, receipt or use of password, access codes or similar data or devices.

Also included are cyber fraud; cyber forgery and uttering; cyber extortion and certain aggravating offences; attempting, conspiring, aiding, abetting, inducing, inciting, instigating, instructing, commanding or procuring to commit an offence; theft of incorporeal properties; unlawful broadcast or distribution of data messages which incites damage to property or violence; unlawful broadcast or distribution of data messages which is harmful; unlawful broadcast or distribution of data messages of intimate image without consent.

The Bill imposes a list of penalties and allows for imprisonment for up to 15 years for cybercrimes and the maximum fine that may be levied for failing to timeously report an incident or failing to preserve information is now capped at R50,000, far less than the extraordinarily high penalties for non-disclosure levied in the initial version of the Bill.

Necessary actions

The search and seizure powers granted in terms of the new Bill “do not represent increasing the state’s surveillance powers”, Deputy Minister, John Jeffries said, “But if the State cannot seize evidential material to adduce as evidence, it will be impossible to prove the guilt of an accused person.”

Any hearings will obviously focus mainly upon the onuses and impositions imposed in the Bill upon electronic communications service providers and financial institutions, known by an acronym in the Bill as “ECSPs”. A date for further parliamentary briefings by DoJ has yet to be scheduled.
Previous articles on category subject
Cybercrime and Cybersecurity Bill invokes suspicion – ParlyReportSA
Draft Cybercrime Bill drafts industry – ParlyReportSA
Lack of skills hampering broadband rollout – ParlyReportSA

 

Posted in Communications, Home Page Slider, Justice, constitutional, LinkedIn, Security,police,defence, Trade & Industry0 Comments

Protected Disclosures Bill: employer to be involved

New Protected Disclosures Bill ups protection….

sent to clients 21 January……The Portfolio Committee on Justice and Constitutional Affairs will shortly be debating the recently tabled Protected Disclosures Amendment Bill which proposes a duty or responsibwhisleblower policyility on employers to explain and inform employees on the procedures for dealing with a whistle-blower’s disclosure and consequent issues surrounding.

The new Bill also makes it a clear requirement that employees should be informed by the employer that they are “entitled to exercise certain remedies if they are subjected to an occupational detriment as a result of having made protected disclosures”. Clearly, intimidation of the whistle blower is still the object of concern and still an issue.

The term “occupational detriment” is now to encompass any potential “detrimental behaviour suffered by those who previously fell outside of the scope of the Act”. It is also proposed that the definition of “disclosure” be amended.

Definition to include “workers”

An important feature of the new Bill is that the definition of a whistle-blower is also extended to in include “workers” rather than just employees. This therefore includes a person who has “worked” on the premises, i.e. to ensure that independent contractors, consultants, agents and persons working or who have worked for the State are included.

The Bill also seeks to re-define the expression “occupational detriment” to include an employee or worker being subjected to any civil claim for the alleged breach of a duty of confidentiality or a confidentiality agreement arising out of the disclosure of a criminal offence.

A clause states that if “occupational detriment derived from disclosure is proved in a court of law, employers will have to pay compensation or damages to the employee or worker.” Whistle blowers will be excused from criminal justice, it seems.

Law reform overview 

The Mlaw booksinister states in the objectives of the new The Protected Disclosures Amendment Bill, now to be debated in Parliament, that the changes emanate from the South African Law Reform Commission’s report on protected disclosures. The Bill will “empower employees to approach the court for relief in the face of detrimental behaviour shown towards them by employers” and “employees and workers will also be immune from civil and criminal liability flowing from a disclosure that reveals criminal activity.”

False whistle-blowing

However, it is to be noted that in reverse, as it were, should an employee knowingly or believing the information not to be true, disclose false information they will be guilty of an offence and on conviction is liable to a fine or to imprisonment for a period not exceeding two years or both.

The draft of the current Bill was published by the Minister for public comment in July last year, the purpose of the Act itself being to set down the procedure for disclosing unlawful behaviour in the workplace by both private and public sector employees and how such disclosure is to be protected.
Previous articles on category subject
Protected Disclosures Act: More whistleblower cover – ParlyReportSA

Posted in Earlier Stories, Facebook and Twitter, Justice, constitutional, LinkedIn, Special Recent Posts, Trade & Industry0 Comments

Electoral Reform Bill based on new constitutional rulings

Voting for those overseas….

extNAThe Electoral Reform Bill, introduced as Private Member’s Bill by James Selfe MP of the Democratic Alliance (DA), has now finally reached the stage of parliamentary hearings on a number of issues that could change the face of South Africa’s next elections.

The changes proposed will bring the electoral act in line with two constitutional rulings made that have restored voting rights to prisoners and South African citizens based overseas but the proposals in the Bill also seek to introduce elements of proportional representation as a mix with the present party list system, such proposals referring only to the National Assembly.

The cabinet discussed and approved the publication of the draft Bill earlier this year.

Only parliamentary hearings

As a Private Members Bill and as a draft approved by the Speaker of the House, the Bill is immediately tabled as such in the light of the fact that it will not have to be published first through gazetting with departmental public hearings for comment.   This stage of transparency disappears and hence the need for both cabinet and the Speaker’s approval before tabling.

The Electoral Reform Bill proposes the introduction of special votes, prior to election day in respect of provincial legislatures for those South Africans who cannot vote as a result of their physical infirmity, disability or pregnancy.

It would also cater for officials on national duty, members of the security forces, as well as South Africans who intended to be absent from the country for various reasons, including business. It also caters for people serving as election officers who were absent from their voting district.

SA voters abroad to register

Those South Africans who are abroad and interested in voting would have to register at the nearest South African embassy to vote only for the National Assembly.

In submitting the Bill, the DA said, “It is an attempt to ensure that members of parliament are more directly accountable to the people they represent.”   This, they say, is the culmination of a process which was started last year to give effect to the party’s “long-standing policy to ensure that Parliament is tied more directly to constituencies across the country.”

The Bill was aired for the first time by DA leader, Helen Zille; Lindiwe Mazibuko DA parliamentary opposition leader in Parliament; and chairperson of the DA federal executive, James Selfe MP.

Form of constituency voting

The statement said, “While the current “party list” proportional representation electoral system has its advantages, including the fact that we accept that it is inclusive, immune to gerrymandering, and is perceived to be fair, at the same time it does not ensure accountability over members of the National Assembly to individual voters. People have no way of voting out an MP who clearly does not represent their views or whom they disapprove of because of his or her actions”.

“In a list system therefore there is no geographical linkage between MPs and voters. The allocation by political parties of MPs to non-existent ‘constituencies’ is a very poor substitute, as there is not accountability to, nor mandate from, the voters in those constituencies”, the statement concluded.

100 constituencies, 300 MPs

The Bill contemplates the establishment of 100 three-member constituencies, each with approximately the same number of voters. The task of determining the boundaries of constituencies will rest with the Electoral Commission.

The three MPs representing each constituency will be elected by a system of proportional representation within those constituencies. In practice, this would mean that voters will vote for the political party of their choice, and the three members who obtain the requisite quota of votes or largest surpluses could be elected as the MPs for that constituency. Three hundred members of the National Assembly would be elected in this way. National lists are still included in the proposals.

100 MPs still on party lists

The Bill further proposes that 100 members of the National Assembly be elected from national lists submitted by the various parties.

The reasons for having three members from each of the 100 constituencies, rather than one member from each of these constituencies, are that it both “increases the likelihood of an individual voter being able to identify with at least one of his or her elected constituency MPs.

“It also enhances”, the proponents say, “the practicality of achieving the correct party proportionality in the National Assembly after the 100 members from the national list have been allocated.”

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