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Bench Book on Computer Crimes and Cybercrimes in Southern Africa

Executive Summary

Media freedoms constitute of those freedoms which are necessary for the media to exist and function freely without undue interference and fear of reprisals. Digital rights is a term that is often used to refer to the sum total of human rights which are necessary (amongst other objectives) for individuals to access digital platforms, create online content, publish content online and exercise all of their other human rights through online platforms created through the internet. These rights include freedom of information, freedom of expression, and the right to privacy online. 

Media freedoms and digital rights are critical human rights, particularly for purposes of enforcing public accountability and government transparency. Through media freedoms and digital rights, individuals and communities can participate in public affairs. In addition, the exercise of media freedoms and certain digital rights, including freedom of expression and the right of access to information, is important for the realization of several other human rights, particularly socio-economic rights such as the right to education, the right to access basic livelihoods and the right to health. Under regional and international human rights law, states have obligations to respect, protect, promote and fulfil media freedoms and digital rights. They also have obligations to ensure that restrictions imposed against these rights and freedoms comply with certain normative standards which include lawfulness, the doctrine of legitimate purpose, necessity and proportionality. In addition, states have obligations to ensure that their domestic legal systems provide adequate safeguards to protect rights bearers against arbitrary limitations of these rights, and to ensure that where these rights are violated or threated, rights bearers have access to effective remedies. These normative standards are discussed in this bench book. The bench book also illustrates, through case law, how these standards can be applied in cases which involve the protection of media freedoms and digital rights.  

Under the Advancing Rights in Southern Africa (ARISA) program, the American Bar Association in collaboration with the Democratic Governance and Rights Unit of the University of Cape Town (DGRU), and the Southern and East African Chief Justices Forum (SEACJF) commissioned a study on the development of this bench book on media freedoms and digital rights. The purpose of the bench book is to provide legal guidance to judicial officers in SADC jurisdictions on the protection of media freedoms and digital rights against arbitrary restrictions that are imposed on the basis of laws which regulate the cyber space. This includes restrictions imposed through legislation regulating the use of computers, internet, e-commerce and the processing of personal information. The legal guidance provided in this bench book is largely applicable across all the SADC jurisdictions. However, the targeted primary beneficiaries are judiciaries of eight ARISA Program countries in SADC namely South Africa, Mozambique, Angola, Namibia, Botswana, Lesotho, Eswatini and Madagascar.

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This bench book was prepared by consultants and staff of the American Bar Association Rule of Law Initiative and the American Bar Association Centre for Human Rights. It has not been approved by the House of Delegates or the Board of Governors of the American Bar Association and should therefore not be construed as representing the policy of the American Bar Association as a whole.

Further, nothing in this bench book should be considered as legal advice in a specific case.

The development of this bench book is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents are the responsibility of ABA ROLI, ABA CHR and ARISA and do not necessarily reflect the views of USAID or the United States Government.