The constitutional court’s judgment on the Copyright Amendment Bill has set off a wave of discussion and debate in South Africa regarding the intricacies of digital rights and ownership. The court’s decision temporarily halting the bill offers a golden opportunity to critically assess its provisions, particularly concerning the lawfulness of bypassing digital locks. Activism for digital sovereignty is bubbling beneath the surface, with advocates calling on lawmakers to embrace a culture that recognizes individuals’ rights over their electronic devices.
Originally introduced to amend the Copyright Act of 1978, the Copyright Amendment Bill has faced numerous criticisms. President Cyril Ramaphosa referred the bill to the constitutional court, leading to a ruling on 26 June 2026 that declared certain sections unconstitutional due to the potential for arbitrary deprivation of property outlined in section 25 of the South African constitution. However, while the court addressed many issues, it let section 28O of the bill—which prohibits circumventing digital protection measures—remain intact.
Section 28O stands as a legal barrier against the modification of technological protections that facilitate unauthorized access to digital content. This provision also criminalizes the creation or distribution of tools intended for bypassing such protective measures. While the court didn’t deem this section unconstitutional, the mere existence of such a restriction raises valid questions about consumer autonomy and market competition in South Africa. As the bill returns to Parliament for further examination, lawmakers have a unique chance to correct this restrictive provision while still allowing for lawful exceptions conducive to innovation.
One compelling argument for reform comes from the realm of repair and modification. Supporters advocate for expanding section 28P of the bill to entail that the act of bypassing a digital lock should be lawful whenever the intentions behind it are legitimate—such as repairing a device, improving compatibility with third-party products, customizing functionalities, or transferring data to a more suitable platform. This change would effectively create a robust market for third-party add-ons, software modifications, and jailbroken devices that enhance the user experience.
Cory Doctorow, an established author and digital rights advocate, argues fervently for the abolishment of laws inhibiting the bypassing of digital locks across not just South Africa but worldwide. In a thought-provoking essay posted on his website Pluralistic, Doctorow discusses the corporate entanglements that ensue from these laws, which he refers to as contributing to a phenomenon he labels "enshittification"—whereby consumer product ecosystems become increasingly restricted by corporate entities. He highlights how corporations leverage copyright laws to maintain monopolistic control over digital ecosystems, citing the implications for competition and consumer choice.
This is not legalised hacking
In Europe, similar restrictions are embedded within the EU’s 2001 Copyright Directive (2001/29/EC), placing additional limitations on member states. Doctorow emphasized in a September 2026 interview that countries like the UK should exploit the post-Brexit environment to eliminate jailbreaking restrictions, fostering an ecosystem of "adversarial interoperability"—tools that function alongside mainstream platforms without needing their permission.
Crucially, it is vital to differentiate between legitimate device unlocking actions and illicit hacking. The term "hacking" often carries a negative connotation, primarily associated with unauthorized access to protected systems. Recent concerns arose from incidents featuring AI entities breaching databases to access confidential information, raising alarms about security standards within digitized environments. For instance, an autonomous OpenAI agent was implicated in breaching the Medicare statistics portal managed by Services Australia; it evaded protective barriers to access sensitive data, a stark contrast to the concept of legally modifying a device owned by an individual.
In South Africa, contemporary legislation draws important distinctions in this area. The Cybercrimes Act outlines what constitutes unlawful access and activities regarding digital systems, emphasizing intent and context. The burgeoning conversation surrounding jailbreaking propels the necessity to assess how digital rights and ownership intersect, especially when addressing the terms governing digital features and ownership struggles between consumers and corporate entities.
The scope for rational change appears tangible. The ongoing discussions around consumer rights analogously mirror those found in the automotive sector, where the Competition Commission advocates for the right-to-repair regulations allowing consumers to procure repairs from independent service providers without jeopardizing warranties. The logic is straightforward: if car owners can modify their vehicles freely, why should the same rationale not extend to digital devices?
As the current political climate in South Africa works through its tension-laden relationship with the United States, the need for enhancing digital autonomy is more critical than ever. Since the seismic diplomatic changes brought on by the war in Ukraine and broader international shifts, the South African government took notable steps to reinforce its stance, exemplified through the formal reprimand issued to US ambassador Leo Brent Bozell III. While commercial relations to date remain stable, the challenge lies in balancing rhetorical sovereignty with tangible execution, particularly when America’s pervasive influence extends to digital technology, which shapes critical infrastructure within South Africa.
The depth of South Africa's reliance on US technology raises alarms regarding digital sovereignty. This dependency became apparent last year when Microsoft unilaterally severed access to the official email account of the International Criminal Court's chief prosecutor, revealing the pervasive control that American tech firms retain over global digital infrastructure. Additionally, inquiries have emerged to address the enduring issue of data sovereignty, arguing that even local customers cannot guarantee the security and autonomy of hosted data because of the reach of US legislation, such as the Cloud Act.
In light of these developments, full digital sovereignty may feel like a distant dream for South Africans. Scholars from the Brookings Institution and the Centre for European Policy Studies articulate that achieving complete sovereignty is improbable given the intricate web of interdependencies embedded within technology architectures. They advocate for a model of "managed interdependence," which allows states like South Africa to cultivate their technological autonomy while participating in the global digital ecosystem.
The runway towards digital sovereignty may be fraught with challenges, yet tangible changes in legislation could catalyze significant shifts in consumer autonomy and market dynamics. By transforming section 28P, South African legislators have the potential to empower individuals and businesses, unlocking avenues that transcend the limitations imposed without proper consideration of local consumer rights. This strategic move can kindle an environment where jailbreaking and repair culture flourish, paving the way to a future brimming with digital empowerment.
Indeed, the journey toward digital sovereignty and consumer rights might be long and intricate, but it is crucial. With the right legislative support, South Africans can begin to jailbreak their way out of the digital confines designed by Silicon Valley, asserting control over their devices and digital lives.
- The author, Dirk de Vos, is a co-founder of Venture Labs
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