latest developments relating to information john giles harty rushmere mcpherson inc. kindly note...

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


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?


Access to Information

Most important implicationRequirements Pre-existing founding right (private

bodies only) Procedural requirements No ground for refusal


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


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


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


Human Infrastructure

Public Bodies Information Officer Deputy

Information Officers

Private Bodies Head Authorised

Representative

Cost of Resources and Training


Submit a Report

Public bodies onlyHuman Rights CommissionAnnual basisReport on access to information


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


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”


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


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


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


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


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


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


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


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


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

http://www.gov.za/gazette/bills/2001/b50b-01.pdf

http://www.gov.za/gazette/bills/2001/b50b-01.pdf


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;


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—


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;”


Comments on RIC

Controversy – “SA Internet Censorship”Democratic process Public interest vs individual freedomExample

Questions???


Thank You for your attention

John Giles(011) 884 0792

www.harty.co.za [email protected]

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