SA Cybercrime Bill in conflict with Whatsapp Privacy Policy.

The South African parliament is cracking down on cybercrime with a new bill that amoung other things seeks to regulate how users share nudes and intimate videos on the instant messaging app, Whatsapp. The debatable laws are part of the country’s Cybercrimes Bill aimed at criminalizing revenge porn and cybercrimes associated with the instant messaging application.

The bill was passed on the 2nd of December 2020 for the South African President’s approval. First introduced in 2017, the bill has gone through several revisions. The main objectives are:

• To create offences and impose penalties which have a bearing on cybercrime.
• To criminalise the distribution of data messages which are harmful.
• To provide for interim protection orders around these messages
• To further regulate jurisdiction in cybercrime

The bill tasks electronic communications service providers and financial institutions with the responsibility of monitoring said cyber-crimes on the Facebook-owned messaging app. This means that to fulfil their duties the tasked authorities and the police will have full access to the private data of Whatsapp users.

The bill criminalizes the sending of messages which could be seen as harmful, such as the disclosure of intimate images without the subject’s consent, or the sending of threats and incitement to violence. The bill could also include Facebook and Twitter posts and messages. Other included offences are photoshopped images with the intent of harm, misinformation, fake news and threatening messages.

The proposed laws would make sharing porn videos or images where you are not a participant of or an owner a punishable offence within the borders of our southern neighbour. The laws are also honing in on the issue of forwarding such content as with social media this is how things go viral. Enablers of the spreading of such content have hidden behind the “I am just forwarding” scapegoat for too long, those who aid distribution should be held accountable.

However, in theory, the laws are aiming at nasty cyber behaviours like revenge porn, harassment and the ever-annoying fake news which are a huge problem online. But in practice, the bill’s execution could prove tricky.

First of all these laws are in such conflict with Whatsapp’s privacy policy which reads,

“Respect for your privacy is coded into our DNA. Since we started Whatsapp, we’ve aspired to build our services with a set of strong privacy principles in mind”.

What happens to Whatsapp’s key selling point of end to end encryption for users’ messages which is directly undermined by the proposed bill?

According to WhatsApp.com, the end-to-end encryption is built into the App as a whole. This ensures all communications done on the app are only accessible to the sender and recipient. Not even Whatsapp can access it. This is where I question just how feasible this bill is, I don’t see Whatsapp reworking their entire App that works perfectly to accommodate just one country.

Secondly what criteria is going to be used by the appointed authorities to go through the billions of messages and possibly posts made by the millions of WhatsApp users in South Africa (SA)? Determining which content is legal and illegal will be a job and a half that will most probably come down to relativity.

The laws sacrifice the citizens of SA’s right to privacy in the process of weeding out these cyber offenders. While attempting to address a very serious issue the bill is sowing seeds for future ramifications that I fear will do more bad than good. It is a slippery slope once we start imposing on an individual’s right to privacy.

Also, I believe if the bill should be passed the power given to electronic communications service providers and financial institutions should be regulated itself by some sort of independent body. Like all human beings these authorities have the potential to abuse this power.

While the issue itself is very serious and I commend the SA government for trying to find a solution, I don’t, however, agree with how the solution seeks to right the wrong. All we can do now is wait and see how things unfold and how Whatsapp will respond.