South African Cybercrime Bill creates Trial by Hollywood By David Robert Lewis

THIS YEAR has been a disastrous year for cyber-liberties. If it isn't the history-making interdict of a twitter hashtag by the High Court, limiting free speech, which gets you, then its the sheer magnitude and gumption of several proposed laws, being rolled out by legislators. Each one on its own, severely erodes digital rights and freedoms, which include access to information, freedom of communication, the right to privacy and online speech.

First there was the draft ‘Online Regulation Policy of The Film and Publication’s Board’ (FPB Bill https://drive.google.com/file/d/0B0FOi7Ay2OZ6ZU1fZnI3NEQ4UTQ/view), labelled ‘Africa’s worst new Internet censorship law http://www.dailymaverick.co.za/opinionista/2015-06-10-africas-worst-new-internet-censorship-law-everything-you-dont-want-to-know-but-need-to/” and which has resulted in a storm of protest. This was quickly followed by a Copyright Amendment Bill http://medialternatives.com/2015/08/17/draft-copyright-bill-amendment-alarm/(resale royalties bill) which fails to take into account permissive licensing under the Creative Commons. (Under the new Copyright Act, t*here will be no possibility of releasing material under a Copyleft license, since such schemes are by deemed to be an infringement of compulsory licensing under Copyright law.) *

Now the Cybercrimes and Cybersecurity Bill http://www.gov.za/speeches/justice-publishes-cybercrimes-and-cybersecurity-bill-public-comments-28-aug-2015-0000, ostensibly aimed at plugging online security breaches, while thwarting criminals — perhaps the worst piece of anti-speech law to come our way yet. Far from being an answer to cybercrime, the draconian bill views the mere intention to use the Internet, as grounds for suspicion, in an Orwellian world described by author Cory Doctorow, as a ‘war against general purpose computing’. http://boingboing.net/2012/08/23/civilwar.html

That’s right, merely using a computer, could lead to a chain of events, mapped out by legislators, which includes the end of due process and the annulment of fair use rights and other freedoms. As such, the Cybercrime Bill as it stands, already contradicts our constitution and the previous Copyright Amendment Bill, which in turn, is further complicated by the FPB bill, and when viewed as a suite of legislation, the result is rather scary.

Cybercrimes, such as merely downloading or copying a Hollywood ‘fliek’, could result in forced rendition to a foreign country as a “terror suspect”. The latest Bill, drafted by securocrats, attorneys and lobbyists, acting at the behest of Hollywood, creates a series of unlawful acts, including ‘appropriation of property under copyright’ and deals with the consequences, as if Bruce Willis and Arnold Schwarzenegger were the ones implementing the legislation.

Where the AFB uses the threat of child pornography to advocate for less online freedom, the cybercrime bill uses the threat of terrorism and espionage to motivate for a world in which merely owning a computer, could lead to a change in the legal principle, ‘innocent until proven guilty’. Interception of your data and communication by government agencies acting without a court order, becomes the norm, rather than the exception in the bill drafted by the Department of Justice and Constitutional Development.

Each one of these proposals, severely erodes rights and freedoms guaranteed by our constitution. Without sufficient checks and balances, safeguarding constitutional rights, a default override in favour of citizen’s rights, the laws represent a clear and present danger to freedom.

On January 18, 2012, a series of coordinated protests occurred on the Internet. The online demonstrations against the United State’s ‘Stop Online Piracy Act’ (SOPA) http://www.wikiwand.com/en/Protests_against_SOPA_and_PIPA, saw hundreds of web-sites, including Wikipedia voluntarily blacked out, sending a clear signal to the American Congress and resulted in a major victory against Hollywood, in a campaign lead by hacktivists and the late Aaron Swartz. http://www.cnet.com/news/how-aaron-swartz-helped-to-defeat-hollywood-on-sopa/

Like the earlier Digital Millennium Copyright Act (DMCA) which sought to control the reproduction of data, SOPA was criticised for being overly broad and too robust. It contained measures, critics said, that could cause great harm to online freedom of speech, Internet communities and net neutrality. Protesters also argued that there were insufficient safeguards in place to protect sites based upon user-generated content.

ACT NOW BEFORE IT IS TOO LATE

Interested parties wishing to comment on the Bill are invited to submit written comments to the Department of Justice and Constitutional Development on or before 30 November 2015. These can be submitted to: cybercrimesbill@justice.gov.za. Submissions can also be faxed to: (012) 406 4632. For information or queries related to submissions, contact Mr S J Robbertse on: (012) 406 4770.