Alignment of South African E-Commerce Law

Tana PistoriusDepartment of Mercantile Law UNISA

CYBER LAW @ SA 3 – CONFERENCE & BOOK LAUNCH

Alignment

• External

• Internal

• Back to square one

External alignment

4

United Nations Conventions on the Use of Electronic Communications in International Contracts, 2005

Regional Imperatives

• African Cyber Convention

• SADC Model Law

Internal alignment

2 Pivotal principles

• Functional equivalenceFunctional equivalence– Translation of requirement to electronic

environment– Media neutrality

• Technology neutralityTechnology neutrality– No prescribed technology– Flexible- accommodate future technologies

Legislative alignment

• Legal certaintyLegal certainty

• Protection of individualsProtection of individuals

• Law requires person to produce a document met by data message – electronic form of document or info if:

– Method reliable to assure maintenance of integrity

– Time was sent, reasonable expect

ECT Rules

• Integrity maintained by information being complete and unaltered except for:a)Addition of any endorsement; or

b)Any immaterial change, which arises in the normal course of communication, storage or display.

Companies Act, 2008‘‘electronic communication’’ has the meaning set out

in section 1 of theElectronic Communications and Transactions Act; Anti-avoidance, exemptions and substantial

compliance6(7) An unaltered electronically or mechanically generated

reproduction of any document, other than a share certificate, may be substituted for the original for any purpose for which the original could be used in terms of this Act.

Illustration: Time of contracting

ECT Rules

• Sec 23(1) Sent: – data message enters info system out of control of

originator/– Same info system: capable of being retrieved

• Sec 23(2) Received: – complete data message enters info system – Designated or used for purpose– & capable of being retrieved and processed

Companies Act

• 6(10) If, in terms of this Act, a notice is required or permitted to be given or published to any person, it is sufficient if the notice is transmitted electronically directly to that person in a manner and form such that the notice can conveniently be printed by the recipient within a reasonable time and at a reasonable cost.

Company Regulations: Table CR 3 Method and times of delivery of documents

Method of delivery Date and time deemed delivered

Notice or copy of document electronic mail

Date and time recorded by computer used by sender unless conclusive evidence that it was delivered at different date/time

Transmission of document as separate file attached to e-mail message addressed to recording officer of Tribunal

On date and time recorded by Tribunal’s computer system; unless within 1 business day after that date recording officer advises that file is unreadable.

Critical databases

– Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002

– Protection of Constitutional Democracy against Terrorist and related Activities Act 33 of 2004.

– “critical electronic communications infrastructure” in SITA Act.

ECT Definition

• Data message

Consumer Protection Act

• “Electronic communication” communication by means of electronic transmission, including telephone, fax, SMS, wireless computer access, e-mail or similar technology or device

Uniform Rules of Court4A (1) Service of all subsequent documents and notices…

(c) facsimile or electronic mail to the respective addresses provided

(3) Chapter III, Part 2 of the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002) is applicable to service by facsimile or electronic mail.

(6) The filing with the registrar of originals of documents and notices referred to in this rule shall not be done by way of facsimile or electronic mail.”

• CMC WOODWORKING MACHINERY (PTY) LTD v PIETER ODENDAAL KITCHENS Case No: 6846/2006 Facebook service

Intellectual Property Laws

• CIPC E-Government service

• E-filing project

Regulations 1A• Registrar – electronic services(4) Unless another form of electronic signature is specified in the

operating requirements, any signature requirement under the Act or these regulations in respect of a record to be accessed from or lodged with CIPRO is satisfied by the CIPRO user entering his access code on the CIPRO system and any record lodged after the CIPRO user having entered the access code shall be deemed to have been duly signed by the person whose signature is required under the Act or these regulations for purposes of such record.

• Electronic signatures

• Statutory requirement

CONCLUSION: ALIGNMENT

Priority

Legal certainty

Coherence

E-commerce uptake