By: Nick Altini - Partner and Sandhya Foster, Director at Herbert Smith Freehills

The internet has become an essential tool for business, communication, education and entertainment. It is therefore no surprise that the use of internet and smartphones is on the rise globally, including in South Africa. Smartphones are a relatively cheap and widely accessible method of obtaining internet access. The number of smartphone users in South Africa has been steadily increasing for the past nine consecutive years and is projected to rise by 12 million between 2024 and 2029, reaching a total of approximately 26 million users and representing an approximate 86% growth over a short period.

With the increased usage of the internet and smartphones, including by vulnerable members of society, comes an increase in online risks, including cybercrime activities which are continuously adapting, becoming more sophisticated and more difficult to guard against.  It is not only the vulnerable who are targets of cybercrimes though.

• Hacking and data breaches are common occurrences, with cybercriminals regularly targeting both public and private sector organisations to gain unauthorised access to sensitive data. 
• Business email compromise is also on the rise. Recently, a law firm in South Africa was the subject of a damages claim following an incident of business email compromise.[1] The victim’s email account was intercepted and the account details to which the victim transferred a large sum of money for the purchase of a property was altered by the hackers.  The law firm ultimately successfully defended the damages claim on appeal, but the case illustrates the pervasive nature of the risks that even sophisticated businesses face on a daily basis. 
• With the increasing shifts towards online shopping and online banking, online fraud, identity theft and phishing are becoming major concerns. Individuals who are not well informed about the ever-evolving methods that cyber-criminals employ to defraud and exploit the unwary are often targets of merciless criminals. 
• Social media platforms and online communication channels have become arenas for cyberbullying, online harassment and defamation which often results in emotional and psychological harm to victims, particularly minors who are especially vulnerable to these risks. 

Cybercrime poses a significant economic burden on economies, businesses and individuals but also cause reputational damage and emotional distress. With the continued rise of e-commerce and digitalisation, the risk of cyberattacks could also discourage businesses from adopting new technologies, hampering economic growth and the lack of robust cybersecurity measures could deter international investors from engaging with South African markets. 

Online safety laws play a crucial role in safeguarding users and promoting a secure digital environment. A secure online environment fosters trust and encourages more users to engage in e-commerce and digital services, which is essential for the growth of the digital economy. Herbert Smith Freehills has created an interactive heatmap tool – Online Safety: A Global Regulatory Overview which helps online service providers keep track of the latest developments in online safety across 9 jurisdictions and we are delighted to have contributed to this tool in relation to South Africa. The tool also allows users to compare applicable regulations across different jurisdictions.   

As is evident from the tool, South Africa has a number of laws and voluntary codes which have the aim of guarding against online risks.  These include the Cybercrimes Act 2020 which criminalises the disclosure of harmful communications and the unlawful appropriation of proprietary information in electronic form. 

While the harms addressed by South African regulation addresses the distribution and creation of prohibited content, such as child pornography, content amounting to propaganda for war, and messages which incite damage to property, threaten persons with damage to property and violence and contain intimate images, there is scope for further regulation.  For instance, in Australia and the EU, the regulations apply to a broad range of online service providers, including social media, and there is a particular focus on minimising harm to minors and cyberbullying across the major jurisdictions including the UK and US. 

The dynamic nature of the cyber environment means that legislation aimed at ensuring online safety must be capable of rapid adaptation and change as technology, and technology crimes, evolve.  Of increasing importance is the role that online providers and platforms themselves must be required to play in preventing and combatting cybercrimes – and this will create new regulatory compliance obligations for those businesses. Staying abreast of regulatory developments in this sphere will be key.  

It is crucial that South Africa, and the rest of Africa, do not lag behind jurisdictions with more advanced legal frameworks for cybercrime, and regulators that enforce that frameworks because otherwise they will expose their citizens as soft targets for threat-actors.