There are welcome amendments to the Bill since the first contentious draft of 2015. The controversial offence of “computer-related espionage” which left whistle-blowers and journalists in possession of “confidential” State information defenceless, has been removed. Furthermore, the “Personal information and financial offences”, the “Infringement of Copyright” and the “prohibition on dissemination of data messages which advocates, promotes or incites hate, discrimination or violence” have also been removed.

However, the redrafted Bill now provides for the prohibition of “malicious communications”, which includes the prohibition of a “data message which is harmful”. A person who is guilty of “unlawfully” and “intentionally” having made “available”, “broadcasting” or “distributing” a “data message” which is considered “harmful” in terms of the Bill, can face imprisonment of three years.

Section 16(2) of the Constitution stipulates that the right to freedom of expression does not include “propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.” Unless the prohibition of a “data message which is harmful” prohibits any of these forms of expression and relies on constitutionally-aligned terminology, it will infringe the right to freedom of expression. This infringement can then only be justified if it is considered reasonable in terms of the limitation inquiry. One must consider whether the nature and extent of the limitation is narrowly tailored to the purpose considering the importance of the right to freedom of expression.

The Bill creates various instances when a “data message” defined as “data generated, sent, received or stored by electronic means, where any output of the data is in an intelligible form” will be considered “harmful”. Reference is made to undefined terminology such as “to threaten a person or group of persons” with “violence against any identified person forming part of the group or who is associated with the group”. Section 16(2)(b) of the Constitution specifically prohibits expression which “constitutes incitement of imminent violence” which is associated with expression directed at causing lawless action. Therefore, the prohibition in the Bill falls outside the scope of section 16(2) of the Constitution and it is necessary to consider whether the prohibition can be reasonably justified.

The prohibition of a “data message which is harmful” will create confusion regarding what conduct is being prohibited. No definition is provided for crucial elements such as “to make available”, “broadcast” or “distribute”. Other proposed legislation such as the Films and Publication Amendment Bill must be considered to ensure uniform use of definitions. Furthermore, “to threaten” is not defined and it is unclear what the threshold would be. It is also unclear how a person will be “identified” as forming part of a group or be “associated with the group”. Does there need be a common characteristic between members of the group and if so, which common characteristic then?

A data message is also considered “harmful” for instance if it is “inherently false in nature and is aimed at causing mental, psychological, physical or economic harm to a specific person or group of persons”. This provision appears to be an attempt to limit ‘fake news’ but again no clarity is provided regarding what is considered “inherently false”. Furthermore, a person whose reputation for instance suffered harm would have existing remedies available, such as a civil claim for defamation or even the common law crime of crimen injuria, and it is not clear why there is a need to codify this offence. In general, it is also concerning that no statutory defences are stipulated for any of these specific offences, which contribute to an overbroad limitation on the right to freedom of expression.

It also appears the intention of the inclusion of “malicious communications” was to extend the scope of the Protection from Harassment Act (the Harassment Act) to cyber harassment and the Bill also provides for a protection order pending criminal proceedings. However, the Harassment Act only refers to “harm” which includes “mental, physiological, physical or economic harm” and the term “harmful” is not referred to. Nonetheless “harmful” is specifically used in the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act) in relation to ‘hate speech’. However, the Equality Act provides no definition for “harmful”. This again creates confusion and it is unclear what the interplay between these legislative measures will be. This all leads to the conclusion that the prohibition of a “data message which is harmful” is overbroad, vague and a sledgehammer approach to fighting cyber harassment.

South Africans should be vigilant and question any legislative provisions, even seemingly well-intended provisions, attempting to curb the right to freedom of expression. The drafters of the Bill must ensure that any proposed measures to curb cyber harassment will surpass the Constitutional limitation inquiry and clear definitions need to be provided for each element of the offence, which corresponds with other proposed legislation.

Furthermore, a reassessment of existing remedies need to be undertaken to justify the need to codify additional offences. Finally, if these additional offences are necessary, statutory defences should also be included in the proposed Bill, to ensure the limitation on the right to freedom of expression is narrowly tailored.

By Ms Christine Botha: Legal Officer, Centre for Constitutional Rights