THE CYBERCRIMES AND CYBERSECURITY BILL Presentation to Portfolio Committee on Justice & Correctional Services MMA 14 September 2017

Overview of Presentation A bit about who we are General concerns on the CCB Specific concerns Conclusion

About Media Monitoring Africa MMA is a registered non benefit trust operating since 1993; MMA’s vision is a just and fair society empowered by a free, responsible and quality media; Through a human rights-based approach, MMA aims to promote the development of: Media that is transparent, diverse, ethical and accountable to its audiences; Critical and constructive communications by the powerful, and; Informed, engaged and connected citizenry. Funded by range of local & international donors – audits – high levels of accountability.

About MMA MMA has presented to Parliament on a range of issues, including: Transformation in Advertising POSIB Bill Broadcasting Amendment Bill Film & Publications Amendment Bill. SABC Ad-Hoc inquiry into SABC Board Copyright Amendment Bill This submission supported by: Media 24 & Kagiso Media

General comments On a road to… nowhere, everywhere, somewhere? Absence of overarching internet governance policy. Where is the Socio Economic Impact Assessment? How will the bodies work together?

Overall Comments Urgent need for clarity around online & digital regulation No SEIA detail revealed, so cant tell where CCB fits in How will these bodies work together? Plethora of Acts/Bills: we have CCB and then; Prevention and Combating of Hate Crimes and Hate Speech Bill [2016] (Hate Crimes and Hate Speech Bill) Films and Publications Amendment Bill [B37-2015] (FPB) Copyright Amendment Bill [B13-2017] (CAB), Protection of Personal Information Act 4 of 2014 (POPI), National E-Strategy in terms of the Electronic Communication and Transactions Act 25 of 2002 (ECTA) National Development Plan (Chapter 4)

Interdepartmental Steering Committee (ISC) Some significant improvements – and need for a law on CCB but Regulating online is hard. Global challenge Digital rights still evolving Also rights cut across many other areas Complex governance structures make it harder to deal with and address violations and to protect rights Cannot be left to one department - constitutionally obligated to coordinate action

Interdepartmental Steering Committee (ISC) Recommend creation of ISC to build on Cyber Response Team ISC to be multi stakeholder including experts, civil society, Offer support to decision makers Ensure up to date and in keeping with cross cutting nature of online regulation

Socio-Econ Impact Assessment Essential that this is made public Especially as CCB deals with broader issues Stakeholders can add value and ensure greater likelihood of success If not done must be done urgently and CCB halted

Concerns: Best Interest of Children Best interests of children not considered Ignores Constitutional Provision Technology impacts children differently - need digital literacy and also special treatment Need clarity on cyber crimes for and against children Absence of children is a critical flaw

Concerns: Malicious Content & FOE Absence of rights discourse - lagging behind other African nations Create new crime of distribution of harmful message Methods of dealing with “fake news” should be reviewed by ISC Sections 16, 17 and 18 - unintended consequences and chilling Must be narrowly defined and amended

Concerns: Cyber Response Committee Deeply problematic No motivation for why oversite by State Security Must be Minister of Justice NO independent members of committee Open to abuse and secrecy contrary to all progressive approaches and our own constitution It is too large & cannot respond to urgent issues Need an ISC with 16 members

Concerns: Critical Information Structure Definition is overly broad and open to abuse Could include almost anything related to a computer or information Communications technology, including all buildings containing any form of network. Minister of SSA can declare CII Need comprehensive definition and over site

Concerns: Public Interest Consideration Recommended it's inclusion in earlier submission It's omission is profoundly disturbing Essential Public interest Defence is included

Conclusion Thank you for opportunity MMA appreciates the ongoing work of the Department of Justice and Constitutional Development on CCB. Acknowledge the complexities with regulating cybercrime. However, in current form and in the absence of remedying the sections detailed it does not provide an adequate, holistic, and constitutionally compliant response to cybercrimes and cybersecurity in South Africa.

William Bird (MMA, Director) Thank You William Bird (MMA, Director) williamb@mma.org.za And thanks also from: News24 & Kagiso Media