Criminalisation of Specific Forms of Online Communication: a South African Legal Perspective
One of the key findings of the South African Social Media Landscape 2022 study is that the growth in Internet access has, in turn, spurred the use of social media, leading to an estimated 48.8% (28 million) of South Africans being active on social media platforms, such as Facebook, Twitter, Instagram, YouTube, LinkedIn and TikTok. The down side is that online communication may not only become “viral” but it may also be harmful.
Initially Internet regulation focussed primarily on the criminalisation of unlawful online conduct, referred to as a cybercrime, which includes hacking, DDoS attacks, but now the focus has been extended to the criminalisation of specific forms of online communication, referred to as communication offences, which include postings on Facebook or WhatsApp.
The discussion deals with the criminalisation of specific forms of online communication in South Africa, the enforcement of communication offences with reference to the investigative powers of the police, with assistance from service providers, and the manner in which a balance between free speech and security is ensured. It does not deal specifically with the protection of users against harmful content, although a possible consequence of the criminalisation of communication is protection against these forms of communication.
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