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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 Africa6 November 2002
CONTINUING LEGAL EDUCATIONcommitted 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
CONTINUING LEGAL EDUCATIONcommitted to lifelong learningWhat 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)
CONTINUING LEGAL EDUCATIONcommitted to lifelong learningIntroduction to the Promotion of
Access to Information Act (“PROATIA”)
Give effect to the Constitution section 32(1)(a) and (b)
Commencement – 9 March 2001Open Democracy Bill – Privacy ActConstitutional challengeBalancing of interests
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
Implications for YOUYOU
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?
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
Access to Information
Most important implicationRequirements Pre-existing founding right (private
bodies only) Procedural requirements No ground for refusal
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
An Example - EmployeesAccess to Inform a tion held by Priva te B ody
A p p lica tion to C ou rtHigh court
Info rm a tion C ourt
R efu se A ccess
F orm o f A ccess
G ran t A ccess
G rou n d fo r R e fu sa lP ersona l info rm a t ion
C om m erc ia l info rm a t ion
P roced u re
P re-exis tin g fou n d in g R ig h tUnfa ir D isc r im ina t ion
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
A Manual
28 February 2002Compile – Info stipulatedAvailable remedies (Public body) “a description of all remedies available in
respect of an act or failure to act by the body”
Make available - Internet
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
Information Audit
Audit of information Subjects and categories thereof
Document Retention PoliciesElectronic Communications Policy A record includes e-mail
CONTINUING LEGAL EDUCATIONcommitted to lifelong learningAutomatically Available
Information
Request does not have to be madeCompulsory for public bodiesAdvisable for private bodies
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
Human Infrastructure
Public Bodies Information Officer Deputy
Information Officers
Private Bodies Head Authorised
Representative
Cost of Resources and Training
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
Submit a Report
Public bodies onlyHuman Rights CommissionAnnual basisReport on access to information
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
Information Courts
Determination of the existence and the balancing of rights is a judicial functionInitially the tasks of the Information Officer and Head of private bodyInteresting development – Information Courts Accessible, cheap, simple, informal and
expeditious
Possible extension of jurisdiction
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
Sanction for Non-compliance
No general provisionCriminal offencesGood 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”
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
Access to Information Policy
Far reaching implicationsGuidance from the courtsAccess to Information Policy Deal with issues raised Continually updated Tie in with both Document Retention
Policy and the Electronic Communications Policy
CONTINUING LEGAL EDUCATIONcommitted to lifelong learningPrivacy - 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
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
PrivacyPrivacy 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
CONTINUING LEGAL EDUCATIONcommitted 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
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
SA Legal Resources
The ConstitutionOpen 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
CONTINUING LEGAL EDUCATIONcommitted 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
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
Cyber crime
Real world – murder is a criminal offenceOn 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
CONTINUING LEGAL EDUCATIONcommitted 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
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
International approaches
Australia – Cybercrime Bill 2001 Canada - Criminal codeUnited 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 consideredNZ – Crimes Amendment Bill (No 6) – privacy issues
CONTINUING LEGAL EDUCATIONcommitted 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
CONTINUING LEGAL EDUCATIONcommitted to lifelong learningThe 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
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
The crux of RICSection 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;
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
The crux of RICSection 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—
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
The crux of RICSection 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;”
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
Comments on RIC
Controversy – “SA Internet Censorship”Democratic process Public interest vs individual freedomExample
CONTINUING LEGAL EDUCATIONcommitted to lifelong learning
Thank You for your attention
John Giles(011) 884 0792
www.harty.co.za [email protected]