How does the Electronic Communications
and Transactions Act, 2002 affect your
company’s
communication with your customers via email and the internet, or
your relationship with suppliers.
You may be affected by this Act if:
- You send or receive orders or proposals via email;
- You send out an email newsletter;
- You buy goods from South African companies off the internet;
- You conduct commercial or non-commercial transactions off your
company website;
- You have, or make use of an electronic (IT) procurement or
sales system between you and your clients, or between you and
your suppliers;
- You are concerned about your personal information on the internet,
hackers or cyber-crime.
Disclaimer: Please note that I am not a qualified lawyer or legal
advisor although I have spent considerable time researching the
Act during its many iterations. Please see the full disclaimer
at the base of this article.
My objective is to increase awareness with marketing personnel
about the contents of this Act, since it may directly impact on
you in unexpected ways.
I have tried to summarise the relevant Chapters as I understand
them. Where I have made personal comments, I have included them
in [square brackets] and put them in italics. However, if you feel
that this Act might impact on electronic transactions and communications
in your company, I recommend that you download the full copy from
www.gov.za
SUMMARY
The overall objective of the Act is to enable and facilitate electronic
transactions by creating legal certainty around transactions and
communications conducted electronically.
The Act seeks to address the following policy imperatives:
- bridging the digital divide by developing a national e-strategy
for South Africa;
- ensuring legal recognition and functional equivalence between
electronic and paper-based transactions;
- promoting public confidence and trust in electronic transactions;
and
- providing supervision of certain service providers
CHAPTER II: MAXIMISING BENEFITS AND POLICY FRAMEWORK
The Act requires the development of a national e-strategy plan
by the Minister, in consultation with members of Cabinet. This
could offer exciting opportunities for companies or individuals
with practical ideas on creating and implementing e-commerce initiatives
for SMME’s and previously disadvantaged groups!]
CHAPTER III: FACILITATING ELECTRONIC TRANSACTIONS
Part 1 provides for the legal recognition of data messages and
records. Electronic data will, subject to certain conditions, be
permitted to be retained for statutory record retention purposes,
will be regarded as being ‘‘in writing’’,
and as a true copy of an ‘‘original’’ record,
and provision is made for securing proper evidentiary weight of
electronic evidence.
Part 2 deals with the rights and obligations that follow from
the communication of data messages. The Act also provides for the
validity of sending notices and other expressions of intent through
data messages.
CHAPTER VII: CONSUMER PROTECTION
This section will probably be of the greatest interest to marketing
personnel.
On its internet website, vendors must provide consumers with a
minimum set of information, including the price of the product
or service, contact details and the right to withdraw from an electronic
transaction before its completion. Please note that the bill defines
an electronic transaction as:
‘‘transaction’’ means a transaction of
either a commercial or non-commercial nature, and includes the
provision of information and e-government services;
[The Act does NOT state specifically at what point this “provision
of information” or an advertisement or “offer to sell” (which
is all that most websites include) becomes an official “electronic
transaction”. However, based on what I have read in the Act,
it seems that an agreement must be concluded over the internet
(or other electronic means such as email) between the seller and
the buyer i.e. an “offer to sell” as well as an” offer
to purchase” including mutually agreed conditions of sale.
Therefore in my opinion, this Chapter only refers to “true” e-commerce
websites, where purchases may be made online.]
This Chapter does refer to an automated transactions (Section
20), where an agreement may be formed where an electronic agent
[e.g. an automated IT procurement system] performs an action required
by law for agreement formation.
Under Section 43. you will find the types of information that
must be provided on the e-commerce website, which include:
(a) the vendor’s full name and legal status; its physical
address and telephone number; physical address, web site address
and e-mail address; etc.
(b) membership of any self-regulatory or
accreditation bodies to which that supplier belongs or subscribes
and the contact details of that body;
(c) any code of conduct to which that supplier subscribes and
how that code of conduct may be accessed electronically by the
consumer;
(d) in the case of a legal person, its registration number, the
names of its office bearers and its place of registration;
(e) a sufficient description of the main characteristics of the
goods or services offered by that supplier to enable a consumer
to make an informed decision on the proposed electronic transaction;
including the full price of the goods or services, including
transport costs, taxes and any other fees or costs;
(f) the manner of payment; and any terms of agreement, including
any guarantees, that will apply to the transaction and how those
terms may be accessed, stored and reproduced electronically by
consumers;
(g) the time within which the goods will be dispatched or delivered
or within which the services will be rendered;
(h) the manner and period within which consumers can access and
maintain a full record of the transaction;
(i) the return, exchange and refund policy of that supplier;
(j) the security procedures and privacy policy of that supplier
in respect of payment, payment information and personal information; Consumers
are also entitled, under certain circumstances, to a ‘‘cooling-off’’ period
within which they may cancel certain types of transactions concluded
electronically without incurring any penalty. Exclusion includes
financial and investment services, books and magazines, food and
beverages, custom-built goods and some tourist or leisure services.
The supplier must utilise a payment system that is sufficiently
secure and the supplier is liable for any damage suffered by a
consumer due to a failure by the supplier to comply.
Consumers also have the right not to be bound to unsolicited communications
(spam) offering goods or services.
Under Section 45. (1) Any person who sends unsolicited commercial
communications to consumers, must provide the consumer:
(a) with the option to cancel his or her subscription to the mailing
list of that person; and
(b) with the identifying particulars of the source from which
that person obtained the consumer’s personal information, on request
of the consumer. Any person who fails to comply with or contravenes subsection
(1), or who sends unsolicited commercial communications to a person
who has advised the sender that such communications are unwelcome
is guilty of an offence.
CHAPTER VIII: PERSONAL INFORMATION AND PRIVACY PROTECTION
This Chapter establishes a voluntary regime for protection of
personal information. It is envisaged that consumers will prefer
to deal with only those data collectors that have subscribed to
the recorded data protection principles. Subscription to these
principles is voluntary due to the fact that the South African
Law Commission is currently developing specific data protection
or privacy legislation which is expected to be enacted within 24
months.
CHAPTER X: DOMAIN NAME AUTHORITY AND ADMINISTRATION
A section 21 company will be established to manage the domain
name space of the Republic. The Minister is empowered to formulate
national policy on the .za domain name space.
CHAPTER XII: CYBER INSPECTORS
Chapter XII of the Act seeks to provide for the Department of
Communications to appoint cyber inspectors. The cyber inspectors
may monitor Internet web sites in the public domain and are granted
powers of search and seizure of “information systems”,
subject to obtaining a warrant
The Act’s definition of ‘‘information system’’ means
a system for generating, sending, receiving, storing, displaying
or otherwise processing data messages and includes the Internet;
Under Section 82. (1) A cyber inspector may, in the performance
of his or her functions, at any reasonable time, without prior
notice and on the authority of a warrant issued in terms of section
83(1), enter any premises or access an information system that
has a bearing on an investigation
[Amongst other things] He is authorised to:
(a) search those premises or that information system;
(b) search any person on those premises if there are reasonable
grounds for believing that the person has personal possession
of an article, document or record that has a bearing on the
investigation;
(c) take extracts from, or make copies of any book, document
or record that is on or in the premises or in the information
system and that has a bearing on the investigation;
(d) demand the production of and inspect relevant licences and
registration certificates as provided for in any law;
(e) inspect any facilities on the premises which are linked or
associated with the information system and which have a bearing
on the investigation; A person who refuses to co-operate or hinders a person conducting
a lawful search and seizure in terms of this section is guilty
of an offence.
CHAPTER XIII: CYBER CRIME
Chapter XIII of the Act seeks to make the first statutory provisions
on cyber crime in South African jurisprudence. The Act seeks to
introduce statutory criminal offences relating to information systems
and includes—
(a) unauthorised access to data;
(b) interception of or interference with data;
(c) computer-related extortion;
(d) fraud; and
(e) forgery.
Under Section 86. (1) companies and individual should note that
subject to the Interception and Monitoring Prohibition Act, 1992
(Act No. 127 of 1992), a person who intentionally accesses or intercepts
any data without authority or permission to do so, is guilty of
an offence. [you don’t have to do anything with it, just
look!]
A person who unlawfully produces, sells, offers to sell, procures
for use, designs, adapts for use, distributes or possesses any
device, including a computer program or a component, which is designed
primarily to overcome security measures for the protection of data,
or performs any of those acts with regard to a password, access
code or any other similar kind of data with the intent to unlawfully
utilise such item to contravene this section, is guilty of an offence.
[Therefore, if you are given the password to a restricted “pay” website,
and you use it, you are breaking the law! ]
I hope you found this information informative and useful. Please
feel free to download the Government Gazette copy of the Act from
my website, or to contact me should you require any assistance
in upgrading your website or email newsletter to meet the requirements.
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Because of the legal nature of the information in this newsletter,
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