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2.1 In order to assess the extent of the problems currently experienced various existing offences will be considered to determine the following question: Can accessing a computer without the express or implied consent of the owner, or the person having control of the computer, be dealt with in terms of our criminal law? The same will also be done in respect of the unauthorised altering of computer data and software applications.
2.2 Malicious injury to property is described as the unlawful and intentional damaging of another’s property.[1]
Damage
2.3 Damage is caused where property is destroyed, lost, permanently damaged or damaged to such an extent that it reasonably requires repair or that its use is permanently or temporarily interfered with.[2] The damage must furthermore be the consequence of the accused’s actions.[3]
Property
2.4 The damaged property must be corporeal.[4] The mere invasion of a person’s economic sphere is not sufficient.
Culpability
2.5 The element of culpability is satisfied if there is intent to do the relevant act and to cause the resulting damage.[5]
2.6 The obtaining of access to a computer, whether authorised or not, does not in itself cause any damage to the computer or to the information stored on it. This seems to exclude any possibility that this offence can be applied to the unauthorised accessing of a computer.
2.7 The alteration or destruction of information stored on a computer, which may follow the unauthorised accessing of a computer, would have fallen squarely within the description of malicious injury to property were it not for the requirement that the damaged property has to be corporeal. There is no indication that the courts would consider extending the common law to apply to incorporeal property such as information stored on a computer. Even if such an extension is to take place it will only relate to the intentional damaging of information stored on a computer; something which can be done after obtaining authorised access to a computer.
Housebreaking
2.8 Housebreaking is described as the unlawful breaking into and entering a premises with intent to commit a crime.[6]
Breaking
2.9 The element of “breaking" requires the displacement of an obstruction which forms part of the premises.[7] This does not imply that there has to be any physical damage to the obstruction in question.[8]
Entering
2.10 Entering takes place if any part of the perpetrator’s person or of any instrument which he or she is using is inserted into the premises.[9] The entry must be unlawful which means that the perpetrator is not entitled to enter the premises.[10]
Premises
2.11 The premises must be a structure which is or may ordinarily be used for human habitation or for storage of property. [11] The structure does not have to be immovable but it is clear that it must be a physical structure.[12]
Culpability
2.12 The intruder must have the intent to commit some crime other than the entering itself whilst on the premises.[13] The intended offence must not in itself be contained in the breaking and entering.[14] The intent to commit the offence must have been formed when the breaking and entering took place.[15]
2.13 The difficulties which one encounters in the application of this offence to the unauthorised accessing of computers relate mainly to the fact that the offence was developed to protect the sanctity of the home against intrusions that involve danger to its inhabitants.[16] The elements of the offence are all developed to function in the physical world. The requirement of the presence of a person in a physical structure excludes the possibility that the offence, in its present form, can be applied to the unauthorised accessing of a computer. Another problem is that the accessing of the computer must be connected to the intention to commit another offence. As can be seen from the discussion above this may not always be possible because the majority of the actions which may follow the accessing of the computer will not lead to criminal liability.
2.14 It is extremely doubtful that our courts would be willing to extend the application of the elements of housebreaking to the abstract world of computers and the information stored on them.
2.15 The property in question must be corporeal.[17] The offence can therefore not be committed in respect of damage caused by means of the modification of computer data and software applications.
2.16 Copyright in a computer program is protected under the Copyright Act, 1978. Section 11B of this Act describes the nature of copyright in a computer program:
11B Nature of copyright in computer programs
Copyright in a computer program vests the exclusive right to do or authorize the doing of any of the following acts in the Republic:
(a) Reproducing the computer program in any manner or form;
(b) publishing the computer program if it was hitherto unpublished;
(c) performing the computer program in public;
(d) broadcasting the computer program;
(e) causing the computer program to be transmitted in a diffusion service, unless such service transmits a lawful broadcast, including the computer program, and is operated by the original broadcaster;
(f) making an adaptation of the computer program;
(g) doing, in relation to an adaptation of the computer program, any of the acts specified in relation to the computer program in paragraphs (a) to (e) inclusive;
(h) letting, or offering or exposing for hire by way of trade, directly or indirectly, a copy of the computer program.
2.17 Infringement of copyright can lead to criminal liability.[18] Section 27(1) of the Copyright Act, 1978, describes when an infringement of copyright will constitute an offence:
(1) Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright-
(a) makes for sale or hire;
(b) sells or lets for hire or by way of trade offers or exposes for sale or hire;
(c) by way of trade exhibits in public;
(d) imports into the Republic otherwise than for his private or domestic use;
(e) distributes for purposes of trade; or
(f) distributes for any other purposes to such an extent that the owner of the copyright is prejudicially affected,
articles which he knows to be infringing copies of the work, shall be guilty of an offence.
2.18 The maximum penalty that may imposed on a conviction of this offence is a fine or imprisonment for a period of three years in the case of first offenders.[19] In the case of repeat offenders the maximum penalty is a fine or imprisonment for a period of five years. The fine can amount to a maximum of R60 000 for first offenders and R100 000 for repeat offenders.[20]
2.19 The Copyright Act, 1978, also provides for civil remedies to address infringements of copyright.[21] The remedies provided for include actions for damages, interdicts, actions for the delivery of infringing copies and any other actions which will be at the disposal of a plaintiff in respect of infringements of proprietary rights.[22]
2.20 A computer program is defined as "a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result".[23] A computer program will be subject to copyright if it is original and if the author is a South African citizen or is domiciled or resident in the Republic or if it is first published or made in the Republic.[24] Copyright initially vests in the author of a work but it may be transferred to third parties.[25]
2.21 The protection afforded by the Copyright Act, 1978, is very narrowly defined and exists only if the conditions discussed in the preceding paragraphs are met. Protection of copyright in a computer program is therefore not wide enough to prevent all forms of abuse of computers or the information stored on computers.
2.22 In the majority of cases where offences are committed through the use of computers there will be some evidence of the offence to be found on a computer. What needs to be considered is whether the procedural aspects of our law are able to provide the tools necessary to detect, investigate and prosecute such offences.
The Criminal Procedure Act, 51 of 1977
2.23 Chapter 2 of the Criminal Procedure Act, 51 of 1977 (hereinafter "the Criminal Procedure Act") provides for a general power of the state to search for and seize certain articles. The articles which are liable to be seized are divided into three categories:
2.23.1 articles which are concerned with the commission of an offence;
2.23.2 articles which may afford evidence of the commission of an offence; and
2.23.3 articles which are intended to be used in the commission of an offence.[26]
2.24 No limitation is placed on the nature of the article to be seized, as long as it can be included in one of the above-mentioned categories. The purpose of the power to seize articles is to obtain evidence for the institution of a prosecution and to assist the police in their investigation of a case.
2.25 As a general rule the search for and seizure of the above-mentioned articles must be authorised under a search warrant. A search warrant authorises a police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant.[27]
2.26 In certain exceptional cases a search may be undertaken without a search warrant. This is when the person concerned consents to the search for and the seizure of the article in question or where the police official, on reasonable grounds, believes that a search warrant will be issued to him or her if he or she applies for such warrant and that the delay in obtaining such warrant would defeat the object of the search.[28]
2.27 It is clear from the use of words such as "article" and "premises" that the provisions of the Criminal Procedure Act are intended to be applied in respect of physical items. This means that the computer itself may be seized under the provisions of the Criminal Procedure Act. It is doubtful that a warrant can be issued for the search and seizure of specific information contained on a computer.
[1] Milton 765; Snyman 544.
[2] Milton 771; Snyman 546.
[3] Milton 770.
[4] Milton 771; Snyman 545.
[5] Milton 773.
[6] Milton 792; Snyman 550.
[7] Milton 798; Snyman 552.
[8] Ibid.
[9] Milton 801; Snyman 553.
[10] Milton 802; Snyman 553.
[11] Milton 803; Snyman 551; S v Ndhlovu 1963 (1) SA 926 (T); S v Ngobeza and Another 1992 (1) SACR 610 (T).
[12] Milton 804.
[13] Milton 805; Snyman 554.
[14] Ibid.
[15] Milton 806; Snyman 554.
[16] Milton 792; Snyman 554.
[17] See par 2.28 supra.
[18] Section 27 of the Copyright Act, 1978.
[19] Section 27(6) of the Copyright Act, 1978.
[20] Section 27 (6) of the Copyright Act, 1978 read with section 1 of the Adjustment of Fines Act, 1991.
[21] Sections 24 to 26 of the Copyright Act, 1978.
[22] Section 24(1) of the Copyright Act, 1978.
[23] Section 1 of the Copyright Act, 1978.
[24] Section 2 read with sections 3 and 4 of the Copyright Act, 1978.
[25] Section 21 of the Copyright Act, 1978.
[26] Section 20 of the Criminal Procedure Act.
[27] Section 21(2) of the Criminal Procedure Act.
[28] Section 22 of the Criminal Procedure Act.
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