Published on November 10, 2014
E-contracting and Commerce is presented by Pria Chetty and details the South African legal position with regard to electronic contracts and the effect on commerce.
1. ELECTRONIC CONTRACTING AND COMMERCE– PURSUING GLOBAL OPPORTUNITIES PRIA CHETTY ENDCODE.ORG
2. 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?
3. Exploring Electronic Commerce – The Opportunity, The Trends
4. Do you shop online? What are your concerns when shopping online? Group Discussion: Trust and Confidence in E-Commerce
5. Exploring Electronic Commerce Regulation – The EndGame
6. 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.
7. 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
8. 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
9. 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
10. Encode Electronic Commerce – Legislative Models and Approaches
11. ECT Act, 2002
12. 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
13. 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
14. 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
15. 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
16. Exclusions The following transactions may not be concluded electronically: Sale/long-lease of land Wills Bills of Exchange s4(3) & Schedule 1 ECT Act
17. 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
18. Case Law SB Jafta v. Ezemvelo KZN Wildlife – email acceptance of employment contract S v Motata – admissibility of cellphone data
19. 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
20. In Closing
21. 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? ?
22. Pria Chetty Regional Director endcode.org Thanx, Questions?