Cybercrime & Mobile Phone Tampering
Qs & As
‘When the police are investigating an offence, they can secure mobiles and laptops. But they need a judge’s order to take cognisance of whatever the phones or laptops contain’
The investigations leading to charges of drug trafficking being laid against Me Akil Bissessur and his companion were already the subject of controversy but a nasty new twist has been added with leakages of private videos seemingly from the mobile phones under police custody. If a few bad eggs are contributing to sink the image of the police services as strict, equitable and professional operators and custodians of public order, then there is cause to evaluate the legal repercussions on the case and its conduct in any future court proceedings. And who can properly investigate any departures from acceptable practice by the police itself? Lex is invited to share his views below.
* What responsibilities bear the police when taking charge of an individual’s private mobile phone to ensure that only matters of relevance to an inquiry are viewed or analysed and that utmost security is attached to anything extraneous to that inquiry?
There are rules that govern the safe keeping of exhibits in the Standing Orders of the police Force. Exhibits are produced in court as evidence and any tampering with them can destroy their integrity and make them worthless evidence.
* When highly confidential and even intimate files or videos located on a mobile phone find themselves leaked to the general public, is there a redress when considerable irreparable damage to a person’s reputation may have been already done?
The individual can file a complaint with the police as Ms Moheeputh has done.? The other remedy is to file an action for damages against the State for any illegal act that might have been committed in this matter. But the damage as you say would have already been done.
* To your knowledge are there current protocols and procedures governing the recovery and secure handling of seized mobiles and laptops and are these sufficient to ensure public cooperation when attending to such requests from the police?
When the police are investigating an offence, they can secure mobiles and laptops. But they need a judge’s order to take cognisance of whatever the phones or laptops contain.
Under the Data Protection Act, personal data are protected except when disclosure is ordered upon a judge’s order. Under section 42(3) of the same Act, any person who obtains access to personal data, or obtains any information constituting such data, and discloses them without the prior authority of the controller or processor by whom the data are kept commits an offence.
Controller means a person who or public body which, alone or jointly with others, determines the purposes and means of the processing of personal data and has decision making power with respect to the processing. Processor means a person who, or public body which, processes personal data on behalf of a controller.
will the Data Commissioner look into the matter? The Data Commissioner has the power to investigate any complaint or information which gives rise to a suspicion that an offence may have been, is being or is about to be committed under the Data Protection Act. Ms Moheeputh may wish to make a complaint to the Data Commissioner.
* Whoever would have tampered with the mobile phone of the partner of Akil Bissessur and caused intimate pictures to be extracted, shared or distributed without the permission or consent of the owner would have committed an offence under the Cybersecurity and Cybercrime Act 2021 as well. What does the law provide in such circumstances?
Under the Cybersecurity and Cybercrime Act 2021, data means information recorded in a form in which it can be processed by equipment operating automatically in response to instructions given for that purpose, and includes representations of facts, information and concepts held in any removable storage medium.
Under the Act, any person who causes a computer system to perform a function, knowing that the access he intends to secure is unauthorised, shall commit an offence and shall on conviction be liable to a fine not exceeding Rs 50,000 and to penal servitude not exceeding 5 years. Read More… Become a Subscriber
Mauritius Times ePaper Friday 16 September 2022
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