analysis
Judith February
The main focus of the Electronic Communications and Transactions Bill that was tabled in Parliament last week is “to enable and facilitate electronic transactions by creating legal certainty around transactions and communications conducted electronically”. The idea is that once such legal certainty exists there will be greater use of this type of transaction.
The public is often sceptical of conducting electronic transactions and unsure of their legal rights in respect of such transactions. The Bill not only seeks to demystify electronic transactions but also has as its key focus the promotion of universal access to e-commerce, especially among the previously disadvantaged and small and emerging enterprises.
An innovative section of the Bill deals with security when doing Internet transactions and the clamping down on illegal activities. “Cyber inspectors” will monitor “cyber offences” and ensure that the requisite punishment is meted out to those who use the Internet for illegal activities. For the first time, “cyber crimes” are defined, and include unauthorised access to data, interception of or interference with data, computer-related extortion, fraud and forgery.
The Bill aims to protect consumers, particularly their right to privacy, when using the Internet and conducting electronic transactions. It removes legal barriers to electronic transactions and envisages a situation where electronic signatures will be given legal recognition. “Electronic data” will be regarded as being “in writing” and will reflect the “original record” of the transaction. In addition, provision is made for the admissibility of the electronic data as evidence.
Importantly too, the Bill seeks to provide clarity regarding the rights and obligations that follow as a result of entering into a contract electronically. This in itself will add an interesting dimension to the law of contract.
The consumer protection law will also apply to electronic transactions. Vendors will have the obligation to provide the consumers with a certain basic amount of information and consumers are entitled to withdraw from contracts. A “cooling off” period is envisaged .
The Bill tries to address the thorny issue of protection of privacy by establishing what it calls a “voluntary regime for protection of personal information”. Collectors of such personal information can choose if they wish to subscribe to this regime the idea is that consumers will prefer to have dealings with those data collectors who do subscribe to it.
It is also recognised that the Internet presents a security “challenge” and that an effective regulatory framework is needed to limit risks. The Bill seeks to provide for the establishment of an Accreditation Authority within the Department of Communications, which will attempt to enable the identification and authentication of parties in cyberspace.
The authority will also facilitate the voluntary accreditation of electronic signatures. Once these signatures have been accredited their authenticity is guaranteed.
An e-government service will provide a further means for the government to effectively communicate with citizens, but will also enable citizens to submit forms electronically and for departments or ministries to issue permits and licences electronically. This will go a long way to increase efficiency of the government’s ministries and respective departments.
Judith February is a governance researcher at the Institute for Democracy in South Africa and the editor of the PIMS Monitor