Moffat Mungazi
Trust Maanda
Legal Position
THE Data Protection Act was enacted in order to provide for data protection with due regard to the Declaration of Rights under the Constitution, and the public and national interest.
This was meant to create a technology driven business environment and encourage technological development and the lawful use of technology; and unauthorised data collection and breaches, and to provide for matters connected with or incidental to the foregoing.
There are some offences that the Act creates, in order to protect innocent persons.
Section 164 prohibits transmission of data message inciting violence or damage to property.
It says: Any person who unlawfully by means of a computer or information system makes available, transmits, broadcasts or distributes a data message to any person, group of persons or to the public with intend to incite such persons to commit acts of violence against any person or persons or to cause damage to any property shall be guilty of an offence and liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
164A: Sending threatening data message; Any person who unlawfully and intentionally by means of a computer or information system sends any data message to another person threatening harm to the person or the person’s family or friends or damage to the property of such persons shall be guilty of an offence and liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.”
The Act also prohibits any person from recording nude images or videos of a citizen or a foreigner who is resident of Zimbabwe without consent.
Violators shall be guilty of an offence, and liable to a fine not exceeding Level 10 or imprisonment for a period not exceeding five years, or both such fine or such imprisonment. Recording of nudes without that other person’s consent is a punishable offence.
164B prohibits cyber-bullying and harassment.
This means a person is prohibited from unlawfully and intentionally by means of a computer or information system generates and sends any data message to another person, or posts on any material whatsoever on any electronic medium accessible by any person, with the intent to coerce, intimidate, harass, threaten, bully or cause substantial emotional distress, or to degrade, humiliate or demean the person of another or to encourage a person to harm himself or herself, shall be guilty of an offence.
The penalty for that offence is a fine or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment.
164C prohibits the transmission of false data message intending to cause harm.
Any person who unlawfully and intentionally by means of a computer or information system makes available, broadcasts or distributes data to any other person concerning an identified or identifiable person knowing it to be false with intend to cause psychological or economic harm shall be guilty of an offence and liable to a fine or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
The Act also criminalises relaying of spam messages.
164D Spam; Any person who intentionally and without lawful excuse:—
(a) uses a protected computer system to relay or retransmit multiple electronic mail messages, with the intent to deceive or mislead recipients or any electronic mail or internet service provider as to the origin of such messages; or
(b) materially falsifies header information in multiple electronic mail messages and initiates the transmission of such messages; shall be guilty of an offence and liable to a fine not exceeding level 5 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.
164E Transmission of intimate images without consent;
(1) Any person who unlawfully and intentionally by means of a computer or information system makes available, broadcasts or distributes a data message containing any intimate image or video of an identifiable person without the consent of the person concerned or with recklessness as to the lack of consent of the person concerned, with the aim of causing the humiliation or embarrassment of such person shall be guilty of an offence and liable to a fine not exceeding Level 10 or to
imprisonment for a period not exceeding five years or to both such fine and such imprisonment.”.
(2) For the purposes of subsection (1) “intimate image” means a visual depiction of a person made by any means in which the person is nude, the genitalia or naked female breasts are exposed or sexual acts are displayed.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.
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