1. Latest Developments relating to Information John Giles Harty Rushmere McPherson Inc. Kindly note that this presentation does not constitute legal advice and is provided for information purposes only. © 2002. All Rights Reserved For Continuing Legal Education Seminar on The New E-World of Business in South Africa 6 November 2002

2. CONTINUING LEGAL EDUCATION committed to lifelong learning Introduction My objective is to provide an overview or summary of the latest legal developments relating to information (or data) and the communication thereof Information age Information is power Information is an integral part of our society Information society

3. CONTINUING LEGAL EDUCATION committed to lifelong learning What are the main developments? Therefore what follows is NB for - Lawyers who are information (or knowledge) brokers Their clients (public and private) Issues Access to Info (Proatia) Privacy of personal info (SA Law Commission and ECATA) Information crimes / Cyber crimes (security) – (ECATA) Interception of the communication of info (RIC Bill)

4. CONTINUING LEGAL EDUCATION committed to lifelong learning Introduction to the Promotion of Access to Information Act (“PROATIA”) Give effect to the Constitution section 32(1)(a) and (b) Commencement – 9 March 2001 Open Democracy Bill – Privacy Act Constitutional challenge Balancing of interests

5. CONTINUING LEGAL EDUCATION committed to lifelong learning YOU Implications for YOU What are the implications of Proatia on both private and public business? Application Is it applicable to YOU? Public and private bodies as defined Virtually all inclusive Lawyers?

6. CONTINUING LEGAL EDUCATION committed to lifelong learning Access to Information Most important implication Requirements Pre-existing founding right (private bodies only) Procedural requirements No ground for refusal

7. CONTINUING LEGAL EDUCATION committed to lifelong learning An Example - Employees 

8. CONTINUING LEGAL EDUCATION committed to lifelong learning A Manual 28 February 2002 Compile – Info stipulated Available remedies (Public body) “a description of all remedies available in respect of an act or failure to act by the body” Make available - Internet

9. CONTINUING LEGAL EDUCATION committed to lifelong learning Information Audit Audit of information Subjects and categories thereof Document Retention Policies Electronic Communications Policy A record includes e-mail

10. CONTINUING LEGAL EDUCATION committed to lifelong learning Automatically Available Information Request does not have to be made Compulsory for public bodies Advisable for private bodies

11. CONTINUING LEGAL EDUCATION committed to lifelong learning Human Infrastructure Public Bodies Information Officer Deputy Information Officers Private Bodies Head Authorised Representative Cost of Resources and Training

12. CONTINUING LEGAL EDUCATION committed to lifelong learning Submit a Report Public bodies only Human Rights Commission Annual basis Report on access to information

13. CONTINUING LEGAL EDUCATION committed to lifelong learning Information Courts Determination of the existence and the balancing of rights is a judicial function Initially the tasks of the Information Officer and Head of private body Interesting development – Information Courts Accessible, cheap, simple, informal and expeditious Possible extension of jurisdiction

14. CONTINUING LEGAL EDUCATION committed to lifelong learning Sanction for Non-compliance No general provision Criminal offences Good Faith clause “no person is criminally or civilly liable for anything done in good faith in the exercise or performance … of any power or duty in terms of this Act”

15. CONTINUING LEGAL EDUCATION committed to lifelong learning Access to Information Policy Far reaching implications Guidance from the courts Access to Information Policy Deal with issues raised Continually updated Tie in with both Document Retention Policy and the Electronic Communications Policy

16. CONTINUING LEGAL EDUCATION committed to lifelong learning Privacy - Introduction What is your right to privacy? Section 14(d) guarantees privacy as a fundamental right Section 36 limits certain rights where “reasonable and justifiable to do so”  S v Makwanyane 1995 (6) 665 CC “…Whether the desired ends could reasonably be achieved through other means less damaging to the right in question” – per Chaskalson P

17. CONTINUING LEGAL EDUCATION committed to lifelong learning Privacy Privacy laws around the world Self regulated – Truste popular Regulated through legislation e.g. Proatia “Opt in opt out” Consent What are the consequences if infringed? Crime Sued – Based on contract or delict Lose customers Privacy policies – the solution

18. CONTINUING LEGAL EDUCATION committed to lifelong learning Privacy Policies (“PP”) Introduction Personal information  Valuable business asset  Collect - ways Relevant to all involved Rationale for PP Avoid being sued, sanctions, bad publicity Business considerations

19. CONTINUING LEGAL EDUCATION committed to lifelong learning SA Legal Resources The Constitution Open Democracy Bill Never enacted Still some relevant clauses (54, 56, 58) Privacy legislation to come Proatia (section 63 and 88) ECATA (Chapter VIII) SA Law Commission – Issue paper before 2003

20. CONTINUING LEGAL EDUCATION committed to lifelong learning Info crimes / Cyber crimes Introduction Jonathan James – hacking Pentagon, NASA, BellSouth etc "I don't think they should be putting a kid in jail because he proved they don't have very good security“ Jonathan James Rubbish  “perfect security” is an impossible goal  “reasonable security” is the goal

21. CONTINUING LEGAL EDUCATION committed to lifelong learning Cyber crime Real world – murder is a criminal offence On the one hand is prevention (IT security) The other is people’s conduct People are obliged to behave in a certain way Laws and crime are important Relate to comments in introduction Hackers should be punished and not flooded with job offers

22. CONTINUING LEGAL EDUCATION committed to lifelong learning Crimes created by ECATA unauthorised access to, interception of or interference with data hacking / cracking malicious damage to property Computer-related extortion, fraud and forgery does not deal with crimes that have moved online e.g. child pornography and unregulated gambling

23. CONTINUING LEGAL EDUCATION committed to lifelong learning International approaches Australia – Cybercrime Bill 2001 Canada - Criminal code United Kingdom Computer Misuse Act 1990 Other Acts USA Computer Fraud and Abuse Act 1986 Cyber-security Funding Bill – just passed Council of Europe Draft Convention on Cyber-crime Hong Kong – currently being considered NZ – Crimes Amendment Bill (No 6) – privacy issues

24. CONTINUING LEGAL EDUCATION committed to lifelong learning Questions What about investigation and enforcement? Territorial jurisdiction Proposals made re procedural matters USA - Computer Hacking and Intellectual Property (CHIP) units Cyber inspectors Search and seizure Will the proposed law act as a deterrent? Unspecified fine or 1 to 5 years USA - $250 000 or 5 years

25. CONTINUING LEGAL EDUCATION committed to lifelong learning The Regulation of Interception of Communications Bill (“RIC Bill”) Passed by the National Assembly's Portfolio Committee on Justice and Constitutional Development with a few amendments Debated in the NCOP on 29 October 2002 Latest version can be found at http://www.gov.za/gazette/bills/2001/b50b- 01.pdf http://www.gov.za/gazette/bills/2001/b50b- 01.pdf

26. CONTINUING LEGAL EDUCATION committed to lifelong learning The crux of RIC Section 16(5) “(5) An interception direction may only be issued if the designated judge concerned is satisfied, on the facts alleged in the application concerned that— (a) there are reasonable grounds to believe that— (i) a serious offence has been or is being or will probably be committed; (ii) the gathering of information concerning an actual threat to the public health or safety, national security or compelling national economic interests of the Republic is necessary;

27. CONTINUING LEGAL EDUCATION committed to lifelong learning The crux of RIC Section 16(5) “(a) (iii) the gathering of information concerning a potential threat to the public health or safety or national security of the Republic is necessary; (iv) the making of a request for the provision, or the provision to the competent authorities of a country or territory outside the Republic, of any assistance in connection with, or in the form of, the interception of communications relating to organised crime or any offence relating to terrorism or the gathering of information relating to organised crime or terrorism, is in—

28. CONTINUING LEGAL EDUCATION committed to lifelong learning The crux of RIC Section 16(5) (aa) accordance with an international mutual assistance agreement; or (bb) the interests of the Republic's international relations or obligations; or (v) the gathering of information concerning property which is or could probably be an instrumentality of a serious offence or is or could probably be the proceeds of unlawful activities is necessary;”

29. CONTINUING LEGAL EDUCATION committed to lifelong learning Comments on RIC Controversy – “SA Internet Censorship” Democratic process Public interest vs individual freedom Example

30. Questions???

31. CONTINUING LEGAL EDUCATION committed to lifelong learning Thank You for your attention John Giles (011) 884 0792 www.harty.co.za Johng@harty.co.za