ELECTRONIC COMMERCE REGULATION – AFRICA PURSUING GLOBAL OPPORTUNITIES

PRIA CHETTY

TECHNOLOGY & INNOVATION LAW AND POLICY ADVISOR/ ENDCODE.ORG

Overview of Presentation Electronic Commerce – The Opportunity and Trends Background to global electronic commerce regulation –

key models and frameworks. Countries looking to benefit from electronic commerce

need to assess the policy and legal environment related to the ease of global, collaborative and integrated approaches.

Group Activity and Discussion: How suitable are our policy and legal frameworks in connection with developments and trends at the technology layer - as a lens for for regulatory responsiveness to electronic commerce?

Exploring Electronic Commerce – The Opportunity, The Trends

Source/ Read More: https://digiteen.wikispaces.com/Digital+Commerce

Electronic/ digital commerce

“is defined as the electronic selling and buying of goods however it goes further than that, nowadays technology is having a tremendous influence in our lives; currently we are having to deal with the fact that a large share of market economy is being done electronically.”

Source/ Read More: http://www.the-future-of-commerce.com/2014/03/10/infographic-china-ecommerce-market/

Access to global marketplace

Internet Penetration, Devices of choice

Consumer profile data, age, interests, geography

Preference for online

Security and payment concerns – cash on delivery?

Favoured by search engines

Rankings and ratings by users

Source/ Read More: http://blog.amasty.com/e-commerce-trends-for-2014/

Evolution of e-commerce

Intelligent e-commerce enabled by web2.0

Growth in m-commerce

Know your customer

Innovative response by postal services

Source/ Read More: http://blog.amasty.com/the-complete-guide-to-ecommerce-gamification/

Do you shop online?What are your concerns when shopping

online?

Group Activity and Discussion: Trust and Confidence in E-Commerce

Exploring Electronic Commerce Regulation – The EndGame

ICT Policy and Regulation

With the right policies and objectives in place, Information and Communications Technologies (ICTs) can have far-reaching and positive effects on development. ICTs are not a magic bullet, nor an alternative to other development investments, but if applied in the right way they are potentially a crucial enabling factor for development.

Source/ Read More: Unpublished Draft Report of the G8 DOT Force, April 2001

E-Commerce RegulationConvergence of technologies is the major driving factor that contributes to

the exponential growth of electronic commerce. Convergence goes beyond the use of technology to develop new products and services and is seen as a vehicle to improve the quality of life of society in South Africa and other

developing countries. Convergence will open new opportunities for all as

everyone gains equal access to information and the global markets. Small business will be able to compete on an equal footing with big business. What is needed is an environment that is conducive to conducting business and sharing information with confidence. Government will provide support by setting policy and regulatory frameworks that are appropriate to the information communications technology sector while taking cognisance of the pervasive nature of e-commerce and the challenges pertaining to legal and security matters.

Source/ Read More: A Green Paper On Electronic Commerce For South Africa, November 2002

The Issue List Concepts such as “writing,” “document” or “signature”

not easily applied in digital world Legacy laws - requirement in law for certain transactions

to be conducted in paper/ in person Requirements in law for record retention in paper Statutory requirements may prohibit online transacting Requirement in law for admissibility of evidence Conflicts in policies, laws, standards and trade practices

in different jurisdictions

The Issue List

Protection of personal data exchanged Online consumer protection Internet transaction taxation Criminalisation of new cyber-crimes Government’s powers and capacity to investigate and

prosecute crimes on the internet Alignment of intellectual property laws to the digital world Administration of domain names Regulation of ISPs

Key Concepts in Electronic Commerce Regulation

Technology neutrality Functional equivalence Non-discrimination Two-tier approach, Minimalist approach Harmonisation Multi-disciplinary approach Identity Management and Authentication

Promoting trust and confidence

Encoding Electronic Commerce – Key Models and Regulatory Approaches

Electronic Commerce Regulation

UNCITRAL AU SADC ECOWAS National Others: OECD, ITU, WIPO

Globally, there are multiple initiatives, efforts, models at international, national and regional levels. Particularly to:

Promote harmonised, global, coherent and co-ordinated approaches;Address legal barriers to electronic commerce; andPromote trust and confidence in electronic transacting methods

UNCITRAL (1996)

MLEC – Model Law on Electronic Commerce Promote greater consistency in national and

regional approaches. Create a more secure legal environment for

electronic commerce for providing a model reference for legislators

Implemented by several countries In Africa – implemented by South Africa, Cape

Verde, Mauritius

UNCITRAL Model Law Provides for the legal approach to non-discrimination,

technological neutrality and functional equivalence, Fundamentally provides for rules for the formation

and validity of contracts concluded by electronic means, for the attribution of data messages, for the acknowledgement of receipt and for determining the time and place of dispatch and receipt of data messages.

Guide to Enactment, provides background and explanatory text for countries seeking to implement the Model Law

CLOUT (Case Law on UNCITRAL Texts) - cases relevant to UNCITRAL Model Law

Africa Initiatives by, for instance: AU (African Union) SADC (the Southern African Development

Community) ECOWAS (Economic Community of West African States), EAC (East African Co-operation)

AUAccording to the Website:

The Draft Convention gives effect to a Resolution of the last session of the Assembly of Heads of State and Government of the African Union, and seeks to harmonize African cyber legislations on electronic commerce organization, personal data protection, cyber security promotion and cyber crime control.

In pursuance of the principles of the African Information Society Initiative (AISI) and the African Regional Action Plan for the Knowledge Economy (ARAPKE), the Draft Convention is intended not only to define the objectives and broad orientations for the Information Society in Africa, but also to strengthen existing legislations in Member States and the Regional Economic Communities (RECs) on the Information and Communication Technologies.

It defines the security rules essential to establishing a credible digital space in response to the major security related obstacles to the development of digital transactions in Africa.

It lays the foundation for an African Union-wide cyber ethics and enunciates fundamental principles in the key areas of cyber security. It also defines the basis for electronic commerce, puts in place a mechanism for combating intrusions into private life likely to be generated by the gathering, processing, transmission, storage and use of personal data and sets broad guidelines for incrimination and repression of cyber crime. Its adoption would capitalize African and international experiences in cyber legislations and speed up relevant reforms in African States and the RECs.

Source/ Read More: http://au.int/en/cyberlegislation

AU Draft Convention

The objective of this Convention is to propose the adoption at the level of the African Union, a Convention establishing a credible framework for cybersecurity in Africa through organisation of electronic transactions, protection of personal data , promotion of cyber security , e-governance and combating cybercrime

AU Draft Convention - Complexities Information security impacts on the security of

the digital and cultural heritage of individuals, organizations and nations;

The vulnerability in the normal functioning of institutions can compromise the survival and sovereignty of States;

Addressing cyber security calls for clear-sighted political will to define and implement a strategy for development of digital infrastructure and services (eservices) and articulate a coherent, effective and controllable multi-disciplinary cyber security strategy.

AU Draft Convention - Challenges Achieve a level of technological security adequate enough to

prevent and effectively control technological and informational risks;

Build an information society that respects values, protects rights and freedoms, and guarantees the security of the property of persons, organizations and nations;

Contribute to the knowledge economy, guarantee equal access to information while stimulating the creation of authentic knowledge;

Create a climate of confidence and trust, that is: Predictable in terms of prevention and resolution of disputes;

and evolving because it takes into account continued technological evolution;

Organized: covering the relevant sectors; Protective: of consumers and intellectual property (civil and

penal) of citizens, organizations and nations; Secured: striking proper balance between legal and

technological security; Integrated into the international order: providing meaningful

articulation between the national, regional and global levels.

AU Convention - Content

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Provisions relating to legality of

electronic transactions,

protection of personal data, promotion of cyber security,

e-governance and

combatting cybercrime

AU Convention - Criticism

Source/ Read More: http://techpresident.com/news/wegov/24712/africa-union-cybersecurity-law-flawed

Provisions: too much power to the government, particularly in accessing

private information. processing of personal data and sensitive data

without consent of the owner for the purpose of state security and public

interest could be misused. broad and unchecked powers to “investigating

judges”. Such powers include the power to issue search and seizure

warrants for any electronic records. prosecution of anyone seen to promote

“theories” of racism and xenophobia. only approved e-commerce payments

may be used in a country. This requirement would force popular

global platforms, such as Paypal, to seek regulatory approval, considerably

slowing down the rate at which they could spread their services across

Africa

SADC Declaration on Information and Communications Technology (ICT) , 2001 s 2(d):

‘WE SHALL UNDERTAKE to work together to remove barriers of electronic commerce in our SADC countries as a means to opening opportunities and benefits such as increased access to markets, opportunities to create economic value and cultural assets, reduced administrative costs, and improvement of public services. There is a need to adopt and adapt technologies that enable e-commerce capability to avoid increasing exclusion from the global economy.’

SADC developed a ‘Model Law on Electronic Transactions and Data Protection’ in November 2003.

SADC (e-Commerce Readiness Study, 2012)

Validation Workshop for the e-Commerce Readiness Study in the SADC Sub-Region

Part of the e-SADC Strategic Framework o develop a holistic approach to harnessing ICT for socio-economic development and regional integration

One objective - deployment of eservices, particularly e-commerce to benefit from global opportunities and develop a regional ecommerce strategic action plan.

Angola, Botswana, DRC, Lesotho, Mauritius, and South Africa were earmarked for the readiness study

SADC (e-Commerce Readiness Study, 2012)

SADC e-Commerce Strategy encompasses the following four main pillars:

Enabled e-Commerce Environment; A Capacity Development Programme for e-Commerce Strengthening e-Commerce Sub-Regional and National

Infrastructure; and Institutionalized Framework to Implement, Evolve and Govern

the Current Strategy

Mauritius:· ICTA Public Key Infrastructure (PKI);· Concept of e-Payment;· Computer Emergency Response Team - Mauritius (CERT-MU); and· e-Commerce Strategy for Mauritius Post Ltd.

SADC Model Law on E-Transactions and E-Commerce, 2012

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SADC Model Law, “This Model Law addresses the scope of application of key concepts and proposes neutral definitions for them.

The legal recognition of electronic communications and the legal effect of electronic communications are addressed.

Clear rules for electronic transactions are adopted.

E-commerce issues such as the attribution of electronic communications and electronic signatures, and the admissibility and evidentiary weight of electronic evidence are addressed.

The obligations of online suppliers are addressed. These include the type of information made available to consumers on the information system where such goods or services are offered, and a consumer’s right to a cooling-off period, review of a transaction, withdrawal from a transaction, and the performance, correction or cancellation of a transaction for goods and services are addressed.

Lastly, service providers’ liability is addressed.”

Other SADC Model Laws, 2012

SADC Model Law on Data Protection, 2012 SADC Model Law on Cybercrime, 2012 Technical Assistance was offered by HIPSSA

(ITU project) for the drafting of the Model Laws

The Model Laws were adopted at a SADC Ministerial meeting in 2012

ECOWAS Directive on Fighting Cybercrime, 2009 Incorporation of legal framework for Member

States Emphasis on cybercrime, data protection,

search and seizure

Source/ Read More: Sizwe Snail, Lecture 2013, P&DM www.snailattorneys.com

EAC

Regional e-Government Programme adopted by the EAC Council of Ministers (2006)

Enabling legal framework as a critical factor: e-transactions, cybersecurity

Harmonized regional and national legal frameworks Creation of an EAC Task Force (2008) Background: East African Community Secretariat, ‘Report of

the 2nd EAC Regional Taskforce Meting on Cyber Laws’ (2008) http://r0.unctad.org/ecommerce/event_docs/kampala_eac_2008_report.pdf

The EAC legal framework for Cyber Laws (Phase I) covering electronic transactions; electronic signatures and authentication, cyber crime, and data protection and privacy have been adopted by the Council of Ministers (2012)

EAC“The East African Development Strategy (2011/12 – 2015/16) proposes the key drivers for the realization of the EAC regional integration agenda in the next five years to include, among others, creation of a

strong legal framework (…) The development of cyber laws in the region is

critical to underpin the realisation of full potentials in regional e-commerce, electronic financial

transactions and business processes outsourcing.” Hon. Musa Sirma, Chairperson of the Council of Ministers of the

East African Community and Minister for East African Community, Republic of Kenya, at the occasion of the

presentation of the budget of the EAC for the financial year 2012/2013 to the legislative assembly

Source/ Read More: http://www1.uneca.org/ArticleDetail/tabid/3018/ArticleId/1934/ICT-Ministers-call-for-harmonized-policies-and-cyberlegislations-on-Cybersecurity.aspx

Khartoum Ministerial Declaration – emphasises the need for

African countries to accelerate the formulation of cyberlegilsation…

Source/ Read More: http://www1.uneca.org/ArticleDetail/tabid/3018/ArticleId/1430/Experts-adopt-Declaration-of-Addis-Ababa-on-harmonization-of-cyber-legislation.aspx

Encode Electronic Commerce – Legislative Models and

Approaches

Legislation Enabling Electronic Transacting

The legal recognition of data messages – technology neutrality

The requirement of “writing” to be met by data messages � The requirement of “original” documents and functional �

equivalence The admissibility and evidential weight of data messages

The retention of data messages � The formation and validity of electronic contracts � Recognition by parties of data messages � The attribution of data messages � Liability of internet service providers Acknowledgement of receipt � Time and place of receipt and dispatch of data messages �

Legislation Enabling Protection of Personal Data

Definition of Personal Information Definition of Controller Minimum Security Safeguards Regulator Sharing of Personal Information with Third

Parties Cross-border transfer of Personal Information

Legislation enabling Electronic Signatures Electronic authentication technologies allow the

recipient of the electronic communication to: Verify the identity of the sender � Verify the fact that the content of the message has not �

changed since transmission; and Ensure that the sender cannot later repudiate the

message.

Prescribed (security) standards Accreditation Authorities Functional equivalence Methods to procure integrity of communications,

identity of sender

Legislation Governing Electronic Interception and Surveillance

Definition of interceptionPowers of interception – Who? When? Why? How?Restrictions on interceptionEnabling interception capabilitiesInterception recordsUnlawful interceptionRights of employers

Legislation Governing Cybercrime

Definition of cybercrimese.g. unauthorised access, e-fraud,

OffencesPenaltiesPowers of search and seizure

Intellectual Property Legislation

Domain Name AdministrationReview of trade mark legislationApplication of copyright in digital world

Copying, distribution, remix

Intellectual property in software

South Africa

Electronic Commerce Regulation Electronic Communications Act Electronic Communications and Transactions

Act (ECT Act) Protection of Personal Information Act Regulation of Interception and Interception

Related Communications Act Constitution of South Africa Consumer Protection Act

ECT Act, 2002

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Case Law SB Jafta v. Ezemvelo KZN Wildlife – email

acceptance of employment contract S v Motata – admissibility of cellphone data

Namibia

Source/ Read More: Draft Policy Proposal for the Ministry of Foreign Affairs, Information and Broadcasting in Namibia, Schoemans, 2001

(Some) Lessons from Namibia ICT Policy Proposal Ensure that there is adequate and appropriate participation in

global dialogues. Many global initiatives have been undertaken, most led by the

developed countries with minimal input from developing countries.

Ensure that representatives are fully conversant with the complexities of global information society issues.

Conduct feasibility studies to ensure that all such mechanisms are sustainable in terms of financial, technical and human resources and that, if such vehicles are government-driven, that there is the political will to sustain them.

The implementation of universal access mechanisms must be accelerated to participate fully in the Global Information Society.

Source/ Read More: Draft Policy Proposal for the Ministry of Foreign Affairs, Information and Broadcasting in Namibia, Schoemans, 2001

How suitable are our policy and legal frameworks in connection with

developments and trends at the technology layer - as a lens for

regulatory responsiveness to electronic commerce?Group Activity and Discussion:

Mind the Gap (45 minutes)

In Closing

Other Considerations The drive to harmonise Multiple regional policy efforts – conflict, impose

compliance obligations, outdated E-commerce in the context of international private

laws e.g. international contracting Developing country case studies – unique

opportunities and constraints African case studies - unique opportunities and

constraints Mauritian data protection regulator, e-signature

accreditation Rwandan ICT strategies

Regulatory impact assessments

Pria Chetty

Technology and Innovation Law and

Policy Advisor

endcode.orgThanx, Questions?