Internet piracy criminal, civil penalties in South Africa

In South Africa, under the Copyright Act of 1978, criminal copyright infringement can land offenders in jail for up to five years and result in a fine of up to R10,000.

This is according to information previously supplied to MyBroadband by Michalsons Attorneys, a firm specialising in information and communication technology (ICT) law in South Africa.

The potential criminal penalties of so-called piracy recently became relevant when the Southern African Federation Against Copyright Theft (Safact) announced that a Cape Town man had been arrested for distributing a film online.

According to Safact, the man is accused of distributing a “high-profile South African film” via The Pirate Bay.

Based on the earlier information supplied by South African ICT lawyers to MyBroadband, should the man be convicted, the Copyright Act makes provision for the following penalties:

  • In the case of a first conviction he could look at a fine of up to R5,000 and/or 3 years imprisonment for each copyrighted item distributed.
  • Otherwise he could look at a fine of up to R10,000 and/or up to 5 years jail time per copyrighted item.

While distributing, or uploading to the Internet is likely a criminal offence in South Africa, downloading pirate content is not.

Downloading pirate content is illegal, though according to Nicholas Hall from Michalsons Attorneys, it is a civil matter.

This means that a copyright owner could sue downloaders in South Africa for damages, which ICT lawyers have told MyBroadband usually amounts to the purchase price of the item downloaded.

It is worth noting that downloading content over BitTorrent usually results in some portion of the files being uploaded as well due to the nature of the protocol.

Hall has explained that this feature of BitTorrent, even if only part of a file was uploaded, could be considered distribution under South African law.

This means that should South Africans use BitTorrent to download copyrighted material without a license, they could very well be charged criminally, and not just under civil law.

Hall emphasised that BitTorrent as a technology was not wrong or illegal to use, and that it is the content being downloaded or distributed that determines whether its use is legal or not.

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Internet piracy criminal, civil penalties in South Africa