The prevalence of cybercrimes and hacking incidents and their impact on the confidentiality of documents in civil proceedings

Abstract

Confidentiality is important in legal practice as it obligates legal practitioners to protect clients' information. It is often linked to the right to privacy entrenched in section 14 of the Constitution of the Republic of South Africa, 1996. The link is made on the basis of clients' entitlement to attorney-client confidentiality. Furthermore, the rules of courts in civil proceedings require legal practitioners to include clients' personal or confidential information in court documents, including their identity numbers. The requirement of clients' personal information in court documents is found in particular in Rule 3(A)(1)(b)(i) of the Uniform Rules of Court, 2009 as amended. This personal information is uploaded online in the CaseLines system, as required by Practice Direction 1 of 2023, a situation which poses a significant risk because such information may be hacked and used to commit cybercrimes. Current legislation, such as the Protection of Personal Information Act 4 of 2013, seeks to provide guidelines on how courts should protect confidential information which is included in the pleadings or affidavits. The Practice Directives, however, are silent on measures that should be taken to protect confidential information. Item 18 of the E-Rules and the Draft Amended Magistrates' Courts Rules seek to protect confidential information to a certain extent, but these have not yet been implemented. The article examines current legislation, the respective rules of court, and the approach followed by the courts, in order to determine whether confidentiality does indeed exist in civil proceedings. In addition, it briefly compares the online civil proceedings of South Africa and the United Kingdom to ascertain their differences and similarities.