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Law must respond to Internet revolution
Vote Muza, The Financial Gazette
September 16, 2004

http://www.fingaz.co.zw/fingaz/2004/September/September16/6563.shtml

CURRENTLY in South Africa a man is being prosecuted for having loaded a virus onto the Edgars computer network. The accused is a former employee of the organisation who had a labour dispute with his employer and, as an act of vengeance, performed the computer hacking.

It is common cause that the Edgars computer network carrying millions of files for clients was catastrophically distorted, rendering it dysfunctional. A consequence of this extreme act of industrial malice was the incurring of colossal financial expenses by Edgars in attempting to normalise their computer network.

Lawyers and the public at large are watching developments surrounding this unique prosecution with keen interest because of the impact it is likely to have on the South African legal system and the influence of the now common IT lunatics who derive pleasure in tampering with and destroying computer networks.

To the north of our borders, Zambia is battling with miscreants who pounce on dormant bank accounts through the Internet and help themselves to millions of depositors’ funds. Computer hacking or electronic fraud is not unique to Zambia alone but has, with the advent of the Internet and use of e-mail, proliferated across all states exploiting computer technology.

These criminal acts that have naturally emanated from the computer revolution have created a need to pass laws that specifically cater for the computer and information technology sector.

Although Zimbabwe has exploited the Internet for almost a decade, there is impeccable evidence that government has been slow in legislating this area. More needs to be done to harmonise and make the Internet sector consistent with our common law and other statutes currently in existence.

The facts of the Edgars case stated above create an interesting legal dilemma, if it were to happen in Zimbabwe today. Specifically what crime, under the common law, would the accused be charged of?

Obviously, and on face value, the nearest crime that would cover such facts would be malicious injury to property. However the property damaged here is not physical tangible property, but invisible intangible intellectual property. The definition of malicious injury to property only covers physical property, and so the state would face a grave difficulty in attempting to formulate appropriate competent criminal charges.

An attempt to charge the same suspect under the Miscellaneous Offences Act (Chapter 9:15) would face difficulties because this statute makes references only to "threats" to damage someone’s property. It does not apply to instances where actual damage has ensued. The other difficulty is that the statute does not define what "property" is.

The only practical remedy that requires urgent implementation is the legislation of a piece of law covering this specific area so that a hacker can be defined, and a proper sanction provided for. Otherwise if any mischievous person where to hack into any computer system today, he would go scot-free because of inherent legal vacuums.

It is important to note that section 13 of the Civil Evidence Act (Chapter 8:01) provides for the admissibility or otherwise of computer originated documents. This statute came into operation in 1992, a few years before the launch of the Internet. As such it is important for the legislature to revisit this Act with a view to making it compatible with current technological changes within the computer and Internet sectors. In its current form, the section embarrassingly confirms its inclination towards anachrony.

Another fact to note is that the High Court rules permit the service of court documents through telegraphic means. Such methods obviously include fax service or the so called telex method. With the prevalent exploitation of e-mail services, there is nothing that should prevent an amendment of these rules to permit service of documents over the Internet. However, a forceable difficulty in this regard would be to establish that service has effectively been done.

The radical transformation on a positive note of the telecommunications industry at large has within the local and international contexts brought development and better living conditions for many people. New inventions and discoveries are being made at an accelerated pace, in the process ensuring the setting up of industries, creating jobs and generally widening the doors of opportunity for the capitalists, the underprivileged as well as the disadvantaged.

The rapid growth of this sector, which is key to any economy wanting to asset itself in the current global set-up, has been acknowledged by our own government. Thus the Internet sector has seen many players being awarded licences and numerous cafes opening up, to the benefit of the economy and the public.

While the optimism in this sector has broadly manifested itself through the wide availability of Internet services, government appears to have gradually developed a morbid paranoia and is now in the process of engineering methods of stifling people’s absolute rights to communication and expression.

Other countries including those surrounding us have responded to the Internet revolution by promulgating Internet laws after wide consultations with all relevant stakeholders, such that these laws are popular and development oriented. However our laws merely seek to intrude and eavesdrop into the privacy of Internet Service Providers (ISPs) and their subscribers.

It is suggested here that an all inclusive consultation process including the government, the security industry, ISPs, Computer Society as well as the Law Development Commission, academics in law and electronics and Parliamentarians need to be commenced. Such a process must ultimately give birth to a high breed piece of legislation, that is constitutionally friendly, and is popular with all parties affected by it. It would be wrong and untenable to attempt to vigorously and insensitively bulldoze a law that widely affects the public through vainglory inspired by autocratic tendencies common among those that govern us.

It must be reiterated that the fundamental purpose of the law is to create and ensure justice. It is one thing to have a law and another to have justice for it is not every law that Parliament passes that is just.

Genuine freedom entails the creation of laws that cultivate justice and not those inclined to protect the interests of homophobic and paranoid ruling class.

Vote Muza is a legal practitioner with Harare-based Gutu & Chikowero law firm.
E-mail: gutulaw@mweb.co.zw
webiste: www.gutulaw.co.zw

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