Cybercrimes Act, 2020 (Act No. 19 of 2020)Chapter 2 : Cybercrimes, Malicious Communications, Sentencing and Orders to Protect Complainants from Harmful Effect of Malicious CommunicationsPart VI : Orders to Protect Complainants from Harmful Effect of Malicious Communications21. Electronic communications service provider to furnish particulars to court |
| (1) | If an application for a protection order is made in terms of section 20(1) and the court is satisfied in terms of section 20(3) that a protection order must be issued and the particulars of the person referred to in section 20(1)(a), who discloses the data message, or the electronic communications service provider referred to in section 20(1)(b), whose service is used to host or was or is used to disclose the data message, is not known, the court may— |
| (a) | adjourn the proceedings to any time and date on the terms and conditions which the court deems appropriate; and |
| (b) | issue a direction in the prescribed form, directing an electronic communications service provider, that is believed to be able to furnish such particulars, to furnish the court in the prescribed manner by means of an affidavit in the prescribed form with— |
| (i) | the electronic communications identity number from where the data message originated; |
| (ii) | the name, surname, identity number and address of the person to whom the electronic communications identity number has been assigned; |
| (iii) | any information which indicates that the data message was or was not sent from the electronic communications identity number of the person to the electronic communications identity number of the applicant; |
| (iv) | any information that is available to an electronic communications service provider that may be of assistance to the court to identify the person referred to in section 20(1)(a) or the electronic communications service provider referred to in section 20(1)(b), which provides a service to that person; |
| (v) | any information that is available to an electronic communications service provider which— |
| (aa) | confirms whether or not its electronic communications service is used to host or was or is used to disclose the data message in question; or |
| (bb) | may be of assistance to the court to identify the electronic communications service provider whose service is used to host or was or is used to disclose the data message in questions; or |
| (vi) | an assessment whether or not the electronic communications service provider is in a position to— |
| (aa) | remove the data message or a link to such data message; or |
| (bb) | disable access to the data message or a link to such data message. |
| (2) | If the court issues a direction in terms of subsection (1)(b), the court must direct that the direction be served on the electronic communications service provider in the prescribed manner: Provided, that if the court is satisfied that the direction cannot be served in the prescribed manner, the court may make an order allowing service to be effected in the form or manner specified in that order. |
| (3) |
| (a) | The information referred to in subsection (1)(b) must be provided to the court within five ordinary court days from the time that the direction is served on an electronic communications service provider. |
| (b) | An electronic communications service provider on which a direction is served, may in the prescribed manner by means of an affidavit in the prescribed form apply to the court for— |
| (i) | an extension of the period of five ordinary court days referred to in paragraph (a) for a further period of five ordinary court days on the grounds that the information cannot be provided timeously; or |
| (ii) | the cancellation of the direction on the grounds that— |
| (aa) | it does not provide an electronic communications service to the applicant or the person referred to in section 20(1)(a); |
| (bb) | the requested information is not available in the records of the electronic communications service provider; or |
| (cc) | its service is not used to host or was or is not used to disclose the data message in question. |
| (4) | After receipt of an application in terms of subsection (3)(b), the court— |
| (a) | must consider the application; |
| (b) | may, in the prescribed manner, request such additional evidence by way of an affidavit from the electronic communications service provider as it deems fit; |
| (c) | must give a decision in respect thereof; and |
| (d) | must inform the electronic communications service provider in the prescribed form and manner of the outcome of the application. |
| (5) |
| (a) | The court may, on receipt of an affidavit from an electronic communications service provider which contains the information referred to in subsection (1)(b), consider the issuing of a protection order in terms of section 20(3) against the person or electronic communications service provider on the date to which the proceedings have been adjourned. |
| (b) | Any information furnished to the court in terms of subsection (1)(b) forms part of the evidence that a court may consider in terms of section 20(3). |
| (6) | The Cabinet member responsible for the administration of justice may, by notice in the Gazette, prescribe reasonable tariffs of compensation payable to electronic communications service providers for providing the information referred to in subsection (1)(b). |
| (7) | Any electronic communications service provider or employee of an electronic communications service provider who— |
| (a) | fails to furnish the required information within five ordinary court days from the time that the direction is served on such electronic communications service provider to a court in terms of subsection (3)(a) or such extended period allowed by the court in terms of subsection (3)(b); or |
| (b) | makes a false statement in an affidavit referred to in subsection (1)(b) or (3)(b) in a material respect, |
is guilty of an offence.
| (8) | For purposes of this section ‘‘electronic communications identity number’’ means a technical identification label which represents the origin or destination of electronic communications traffic. |