ELECTRONIC CONTRACTING AND COMMERCE–

PURSUING GLOBAL OPPORTUNITIES

PRIA CHETTY

ENDCODE.ORG

Overview of Presentation

Electronic Commerce – The Opportunity and Trends

Background to global electronic commerce

Companies looking to benefit from electronic commerce need to

assess the legal environment.

How suitable are our legal frameworks in connection with

developments and trends at the e-commerce technology layer?

Exploring Electronic Commerce – The

Opportunity, The Trends

Do you shop online?

What are your concerns when shopping online?

Group Discussion:

Trust and Confidence in E-Commerce

Exploring Electronic Commerce

Regulation – The EndGame

E-Commerce Regulation

Convergence 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.

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

Encode Electronic Commerce –

Legislative Models and Approaches

ECT Act, 2002

Legislation Enabling Electronic Transacting

The legal recognition of data messages – technology neutrality

‰The requirement of “writing” to be met by data messages

‰Acknowledgement of receipt

‰Formation and Validity of Contracts

Automated Contracts

Electronic Signatures

The attribution of data messages

Time and place of receipt and dispatch of 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

Liability of internet service providers

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.

Methods to procure integrity of communications, identity of

sender

Prescribed (security) standards

Functional equivalence

Legislation enabling Electronic Signatures

Accreditation Authorities

Advanced Electronic Signatures

Signatures required by law, law does not specify type

Parties have not agreed to a signature – reliable method to

identify person and indicate the person’s approval

Parties have agreed to signature

Expression of intent where electronic signature is not

requires

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

Exclusions

The following transactions may not be concluded

electronically:

Sale/long-lease of land

Wills

Bills of Exchange

s4(3) & Schedule 1 ECT Act

Enforceability

ECT Act provides for legal validity of electronic contracts and transactions (subject to certain conditions)

Framework of ECT Act must be applied in context of terms and conditions of platform, terms and conditions of service, disclaimers of liability

Click Wrap Agreements

Browse Wrap Agreements

Return and Refunds policies (aligned with consumer protection laws)

Retention of Electronic Records,

Admissibility of Electronic Evidence

Case Law

SB Jafta v. Ezemvelo KZN Wildlife – email acceptance

of employment contract

S v Motata – admissibility of cellphone data

Other Considerations – Enabled Environment

Website Terms and Conditions

Disclaimers

Returns and Refunds Policies

Complaints Policies

Privacy Policies

Policy on Use of Electronic Signatures

Electronic Evidence Policy

Electronic Records Management Policy

In Closing

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?

?

Pria Chetty

Regional Director

endcode.org

Thanx, Questions?