Chapter 1&2

An introduction to Cyberlaw
&
Electronic communications regulation in South Africa
 Introduction
• 4th Industrial Revolution – what is it?
• Has South Africa traversed from an ‘industrial’ society to an ‘information’
society?
• An ‘information’ society can be described as a society in which information
becomes a core economic, cultural and social rescue.
• The internet is at the heart of this growing ‘information’ society or ‘knowledge’
society. Internet laws have therefor become increasingly significant in view of
the impact of technology and the growing information revolution.
What is internet law, cyberlaw or ICT law?
• Due to the changes in the technological environment, new laws needed to be
implemented.
• The initial approach to the subject of ‘cyberlaw’ was to look at how a legal system was
and should be responding to the increased use of computers and the internet in social and
economic life.
• The latter approach of ‘cyberlaw’ is to study the dynamic, substantive and growing body
of law so that we can improve, adapt, meaningfully apply the law and to keep up with
technological advances.
• ‘Cyberlaw’ is the law relating to cyberspace or ‘internet law’ and cover a broad range of
topics such as intellectual property, e-commerce, privacy and data protection, freedom of
expression, cybercrime, electronic / digital evidence, jurisdiction and the regulation of
the telecommunication infrastructure. ‘Cyberlaw’ therefor has a wide interpretation field.
 Important South African Legislation relating to
cyberlaw.

• 1. Constitution
• Provisions relating to the subject includes
• The right to privacy - s14
• Right to freedom of expression - s16
• Right to access to information – s32
• See p 16 & 17 – s231
 2. The Promotion of Access to Information Act of 2000 (PAIA)

• The Promotion of Access to Information Act (PAIA)

• Gives effect to the constitutionally guaranteed right to access to
information.
• Certain conditions must be met, offences and protection. (see
p4)
 3. The Electronic Communications and
Transactions Act (ECT Act)
• The ECT Act forms one of the cornerstones of information and
communications technology law of cyberlaw.
• It covers a wide variety of topics.
• P4 (We will deal with several provisions of the Act during this semester!)
4. The Regulation of Interception of Communications and
Provision of Communication-Related Information Act
(RICA)

• This is legislation that is primarily aimed at the interception and

monitoring of communications and the provision communication-related
information within South Africa.
• P4-5
 5. The Electronic Communications Act
(ECA) (The ECA, together with the ICASA Act, provides primarily for the regulation of the electronic
communications sector.)

• Promote convergence in the broadcasting and telecommunications sectors including licenses.

• Works hand in hand with the ICASA Act. These Acts provides primarily for the regulation of the electronic
communications sector.
• Act passed in 2005 – the ECA seeks to establish a regulatory framework, in line with technological and
economic developments, to promote convergence in the broadcasting and telecommunications sectors, to
promote for the granting of new licences and the control of the radio-frequency spectrum.
• Purpose – to promote convergence in the broadcasting signal distribution and telecommunication sectors to
provide the legal framework for convergence of these sectors. – to make new provision for the regulation of
electronic communications services, electronic communications network services , provide for the granting
of new licences and new social obligations, provide for the control of the radio frequency spectrum etc.
• P7 & 17 P29 - Interconnection
 ECA continue
• P29 – Interconnection is an essential element of how electronic
communications operate and is defined in the ECA as “ the logical or
physical linking of two ore more electronic communications networks,
electronic communications services, broadcasting services, services
provided pursuant to licence exemption or any combination thereof.
• The ECA requires ICASA to prescribe regulations that facilitate the
conclusion of interconnection agreements.
 ICASA Act and Competition
Independent Communications Authority of SA

• ICASA was established by the ICASA Act. It is an independent regulator

and subject to the law and Constitution: - must be impartial and must
perform its functions without fear, favour or prejudice

• P33 – ICASA and the Competition Commission – involved in

#DataMustFall campaign
• Competition law is generally regulated by competition authorities in terms
of the Competition Act of 1998 – Competition Commission.
 6. The Protection of Personal Information
Act of 2013(POPIA) (commenced 2021)
• Aims to promote the protection of personal information processed by public and private bodies.
• To introduce information protection principles and to establish minimum requirement for the
processing of personal information
• To provide for the establishment of an Information Protection Regulator
• To provide for the issuing of codes of conduct
• To provide for rights of persons regarding unsolicited electronic communications and
automated decision making
• To regulate the flow of personal information across the borders of the RSA.
• p8
 7. The Cybercrimes Act 19 of 2020
• The Act, as assented by the President on 26 May 2021, creates offences
which have a bearing on cybercrime, criminalizes the disclosure of data
messages that are harmful and provides for interim protection orders. It
further seeks to regulate jurisdiction in respect of cybercrimes and impose
obligations to report cybercrimes.
• Chapter 13
 Other legislation
• The Competition Act 1998 – p27
• The Consumer Protection Act 2008 p27 -
• The Films and Publications Act
• The Critical Infrastructure Protection Act
• The Promotion to Access to Information Act
• The Independent Communications Authority of South Africa Act
Why regulate electronic communication?
P12-13
History of telecommunications regulations
• Telecommunications v electronic communication?
• Telecommunication is described by the ITU as “ any transmission,
emission or reception of signs, signals, writings, images and sound and
intelligence of any nature by wire, radio, optical, or other electromagnetic
system.
• “Telecommunications” is a more generic and wisely used term.
 Inventions
• 1838 – Samuel Morse – electrical telegraph
• 1876 – Alexander Bell – telephone
• 1893 – N Tesla- radio signals through
transmitter
• 1896 – G Marconi – radio
• 1927 – P Farnsworth – TV
• 1964 – satellites sent into orbit
• 1973 – M Cooper – first cellphone
• 1983 – internet
• 2003 – VoIP calls
 History SA
• 1992 and before – telecommunications provided by Dep of Posts and
Telecommunications. TELKOM SA Ltd was incorporated.
• 1993 mobile cellular operators = Vodacom & MTN.
• 1999 Broadcasting Act 4 of 1999 ( prior to 1994 – was made up by the
SABC
• 2001 – CellC was granted a licence.
• - The Telecommunications Act 103 of 1996 came into force
• 2002 – ICASA Act – Independent Communications Authority of South
Africa as entity
• 2005 – Electronic Communications Act
Main pieces of legislation for electronic communications regulation
 .

• SA is a member of the ITU – International Telecommunication Union

• S231 of the Constitution requires SA to respect and be bound by

international agreements, and the ECA obliges the State to make policies
on matters of national policy applicable to the ICT sector in relation to the
country's obligations and undertakings under such treaties and
conventions.