Academic journal article Journal of Information, Law and Technology

Cyber Crime in South Africa - Hacking, Cracking, and Other Unlawful Online Activities

Academic journal article Journal of Information, Law and Technology

Cyber Crime in South Africa - Hacking, Cracking, and Other Unlawful Online Activities

Article excerpt

1. Introduction

Computer crime or commonly referred to as Cyber Crime or ICT Crime (van der Merwe, 2008, p.61) is a new type of criminal activity which started showing its ugly head in the early 90's as the Internet became a common place for online users worldwide. This is due to the fact that computer criminals now have the opportunity to gain access to sensitive information if they possess the necessary know-how. This generally causes huge problems in the economic sphere and results in companies and individuals having to take costly steps to ensure their safety and reduction in commission of cyber-crime (Gordon, 2000, p.423). Cyber crime or also known as computer crime can be defined as any criminal activity that involves a computer and can be divided into two categories .One, it deals with crimes that can only be committed which were previously not possible before the advent of the computer such as hacking, cracking, sniffing and the production and decimation of malicious code (Ibid) The other category of computer crimes are much wider and have been in existence for centuries but are now committed in the cyber environment such as internet fraud, possession and distribution of child pornography to name a few. It is clear from the above that ICT crime has to be tackled with a more sophisticated multidisciplinary approach (van der Merwe, 2008, p.61). In modern times there is more focus from protecting the 'container' of valuables (the computer is merely the modern equivalent of a bank vault), only instead of money or gold it contains data) to protecting the real valuables in most ICT crimes, namely the data contained in the computer , the cell phone's GPS device and so on. (van der Merwe, 2008, p.63). The question then usually arises as to what types of criminal offences may be committed online and what laws one must apply to charge an offender to successfully get a prosecution.

2. Common law position: Prior to the ECT Act

It is submitted that prior to the enactment of the ECT, the common and statutory law at that time could be extended as widely as possible so as to cater for the arrest and successful prosecution of online offenders. One can easily apply the common law crimes of defamation, indecency (Online child pornography, decimation of child porn), crimen iniuria (also known as Cyber-smearing) fraud (Cyber fraud) (S v. Van den Berg 1991 (1) SACR 104 (T)), defeating the ends of justice, contempt of court (in the form of publishing any court proceedings without the court's permission online or by other electronic means), theft (S v. Harper 1981 (2) SA 638 (D) and S v. Manuel 1953 (4) SA 523 (A) 526 where the court came to the conclusion that money which had been dematerialized could be stolen in its immaterial form) and forgery to the online forms of these offences. The applicability of the common law however has its own limitations and narrows significantly when dealing with online crimes involving assault, theft, extortion, spamming, phishing, treason, murder, breaking and entering into premises with the intent to steal and malicious damage to property.

When looking at the crimes of breaking and entering with intent to steal as well as the crimes of malicious damage to property two commonly known categories of Computer crimes come to mind. On the one hand, hacking and cracking and on the other hand the production and distribution of malicious code known as viruses, worms and Trojan Horses. In S v. Howard (unreported Case no. 41/ 258 / 02, Johannesburg regional magistrates court) as discussed by Van der Merwe, the court had no doubt whether the crime of malicious damage to property could apply to causing an entire information system to breakdown. The Court mentioned further that the crime no longer needed to be committed to 'physical property' but could also apply to data messages of data information. (van der Merwe, 2008, p.70).

The Interception and Monitoring Act, the Regulation of Interception of Communications and Provision of Communication Related Information Act (RICPCRIA) Act 70 of 2002, the Electronic Communications and Transactions Act and the Promotion of Access to Information Act (PROATIA) generally prohibits the unlawful interception or monitoring of any data message which could be used in prosecuting hacker and crackers. …

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