Page 111 - Research & Innovation Report 2020

LAW

bodily injury to, or the death of, any person, or any number or group In terms of POPIA the Information Regulator may now apply
of persons; (b) cause serious risk to the health or safety of the public serious fines of up to R10-million in the case of breach of the
or any segment of the public; or (c) create a serious public emergency Conditions for Lawful Processing or for a Cyber Security Breach in
situation, is guilty of an aggravated offence. terms of Section 22, which will also be reportable to the affected
data subject and the Information Regulator. POPIA also contains
It is also unlawful to send a data message which threatens persons a criminal provision in the event of a person passing on account
with damage to property or violence. Section 15 outlaws the information without the requisite authority.
use of an electronic communications service to unlawfully and
intentionally disclose a data message which threatens a person The POPIA regulates personal information and ensures a duty of
with damage to property belonging to that person or a related safeguarding it by technical and organisational means, as well as
person, or violence against that person or a related person. imposing a duty to identify internal or external security threats and
vulnerabilities. At the same time, the new Cybercrimes Act has
With revenge pornography becoming commonplace, Section robust substantive and procedural laws to pursue any cybercrime
16(1) of the Act provides that any person who unlawfully and offence that infringes on anyone’s personal information or theft of
intentionally discloses a data message of an intimate image of a incorporeal things.
person without such a person’s consent is guilty of an offence.
In conclusion, POPIA and the Cyber Crimes Act in collaboration
Meanwhile, the POPIA has brought into law new responsibilities on will broaden the South African legislative framework relating to
processors of personal information to safeguard that information data protection and privacy, bringing South Africa into line with
and to ensure that processing complies with the eight conditions international standards, while also promoting the right to privacy
for lawful processing of personal information. that is found in Section 14 of the Constitution.

These conditions are: (a) accountability (b) processing limitation Prof Sizwe Snail ka Mtuze is adjunct professor in cyberlaw in the Faculty of
Law at Nelson Mandela University, author and co-editor of upcoming textbook
(c) purpose specification (d) further processing limitation (e) on cyberlaw; part-time member of the Information Regulator and member
information quality (f) openness (g) security safeguards and (h) data of the Ministerial Advisory Group that assisted the Department of Justice and
Constitutional Development in drafting and amending the Cyber Crimes Act
subject participation. during it different stages of drafting.

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