With the rise in the use of technology, social networking sites and all sorts of computers, it became necessary for the countries around the world to regulate the ‘cyber space’.  Earlier, this year Zambia finally enacted The Cyber Security and Cyber Crimes Act. As the name entails the Act, among other things, provides for cyber security and protects persons against cybercrimes.

Defining Cyber Security and cyber crimes

According to the Act:

Cyber security – means tools, policies, security concepts, security safeguards, guidelines, risk management approaches, actions, training, best practices, assurances and technologies that can be used to protect the cyber environment, organisation and user assets.”

Cyber Crime- “means a crime committed in, by or with the assistance of the simulated environment or state of connection or association with electronic communications or networks including the internet.”

NOTABLE CRIMES UNDER THE ACT AFFECTING FREEDOM OF EXPRESSION AND THE RIGHT TO PRIVACY

The Act addresses a range of cybercrimes, some of which will be discussed below;

1.     Hate speech;

–   Hate speech “means verbal or non verbal communication, action, material whether video, audio, streaming or written, that involves hostility or segregation directed towards an individual or particular social groups on grounds of race, ethnicity, antisemitism, tribalism, sex, age, disability, colour,marital status, pregnancy, health status and economic status, culture, religion, belief, conscience, origin.” Whereas fighting hate crime is a legitimate state responsibility the world over, this definition of hate speech is broad and may have a chilling effects on freedom of expression and information.

2.     Section 59 of the Act criminalises the production, possession, conveyance, importation, exportation or causing importation or exportation, advertising or exhibition of obscene drawings, paintings, pictures, images, posters, emblems, photographs, videos or any other object tending to corrupt morals. The words “corrupt morals” are not defined in the Act and thereby present uncertainties in implementation. Moreover, this potentially inhibits artistic, journalistic, research and education works on the basis of undefined obscenity, and corruption of morals.

3.     Unlawful interception

–       Section 49 of the Act prohibits unlawful interception. However, it may be argued, as will be shown below that the Act prescribes limited safeguards with regard to persons who are being intercepted.

–       The Act goes on to say that  service providers shall provide a service that is capable of being intercepted. This is so as to facilitate for the lawful interception of communication. Under section 28 of the Act, interception is conducted by a law enforcement officer when there are reasonable grounds to believe that an offence has been committed, is likely to be committed or is being committed, and for the purpose of obtaining evidence of the commission of an offence. Before intercepting communications, a law enforcement officer applies to a judge for an interception of communications order, after making a written application to the Attorney General for a written consent and such consent has been obtained. The interception order is valid for an initial period of three months, renewable by a judge for an unspecified period. The failure to limit the period of validity of an interception order could subject individuals, to continued surveillance and may affect the said person’s right to privacy.