n Obiter - Is cyber search and seizure under the Cybercrimes and Cybersecurity Bill consistent with the Protection of Personal Information Act? - notes

Volume 37 Number 3
  • ISSN : 1682-5853


The use of the internet, computers and information and communication technologies has become the revolutionary means of communication that proffers unlimited access to a library of information. Information and communications technologies refers to “technologies that pertain to the new science of collecting, storing, processing and transmitting information whereby information, computing and telecommunications are converging” (Ajakaiye and Wangwe “Introduction to the Special Issue ICTs and Economic Transformation in Africa: A Synthesis” 2011 3 African Journal of Science, Technology, Innovation and Development 11). Juristic and natural persons alike have increasingly become dependent on the use of the internet for various purposes, such as conducting e-commerce (e-commerce can be defined as “commercial activities which are carried on by means of computers interconnected by telecommunications lines” Schulze “Electronic Commerce and Civil Jurisdiction, with Special Reference to Consumer Contracts” 2006 SA Merc LJ 31), e-business, accessing and storing information, communication and forging of new relations. With the dawn of each day, new and improved devices and applications (commonly known as “apps”) are constantly designed to adapt to the sophisticated lifestyles prevalent in the information age. For cavalier individuals, the internet presented itself as pristine ground to develop new means of committing crime. Use of the internet, information and communication technologies introduced new forms of offences that were not previously known or defined, neither in terms of common law nor statute (Snail “Cyber Crime in the Context of the ECT Act” 2008 JBL 63). Such crimes include activities like hacking (hacking is the unlawful access and interception of data: Buys Cyberlaw @SA 11 The Law of the Internet in South Africa (2004) 447), cracking (producing anti-security circumventing technology: Snail 2008 JBL 66), phishing (when a fraudster sends an email impersonating another: Nashua Mobile (Pty) Ltd v GC Pale CC t/a Invasion Plant Solutions 2012 (1) SA 615 619 A‒B), dissemination of malicious code (includes the dissemination of destructive programmes and codes, like virus, worms and Trojan horse: Snail 2008 JBL 64) and denial of service (denial of service is the inability of a website or other server to respond to legitimate connections, and is used to block access to a target-internet site: Etsebeth “The Growing Expansion of Vicarious Liability in the Information Age (Part 1)” 2006 TSAR 564 565), collectively known as cybercrimes (cybercrime has been defined as including any crime carried out primarily by means of a computer on the internet: Cassim “Formulating Specialised Legislation to Address the Growing Spectre of Cybercrime: A Comparative Study” 2009 12 PER 36). At the same time, the use of the internet has facilitated the commission of previously defined crimes or traditional crimes, like forgery or theft in ways that are much easier for criminals, yet difficult for investigators to prove (Snail 2008 JBL 63).

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