2 - e-transactions Law - University of Cape Town

Report
Department of Commercial Law
1
University of Cape Town
Electronic Transactions Law
INTRODUCTION
ELECTRONIC TRANSACTIONS LAW

Electronic Transactions Law

*"What's in a name? That which we call a rose by
any other name would smell as sweet."Romeo
and Juliet (II, ii, 1-2)
[email protected] , [email protected], ICT law, IT law,
technology law, tech law, computer law,
electronic law, social or new media law, digital
media law, internet law, cyber law, and web law.
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WHAT IS AN ELECTRONIC TRANSACTION?

No definition in the Electronic Communications and Transactions
Act No. 25 of 2002 (ECTA)



Working def: commercial and non-commercial transactions
concluded wholly or partially through electronic communications,
including e-government services
Electronic Transactions Law
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S1 ECTA : ‘electronic communication means a communication by
means of data messages’
‘data message’ means data generated, sent, received or stored by
electronic means and includes (a)voice, where the voice is used in
an automated transaction; and (b) a stored record;
‘data’ means electronic representations of information in any form
1. Does the definition of data messages include voice, where
it is not used in an automated transaction?
2. Is the definition of electronic communication in ECTA
substantively different from that in the Electronic
Communications Act?
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TECHNOLOGIES


Internet (via computers, TVs and mobile phones)
Online ‘tools’: websites, email, VOIP, social networks
Electronic Transactions Law
R Buys & J Rothman ‘the internet: an overview’ in [email protected]
http://www.cyberlawsa.co.za/cyberlaw/cybertext/chapter1.htm
B M Leiner et al ‘Brief history of the internet’
http://www.internetsociety.org/internet/internet-51/historyinternet/brief-history-internet
History of the internet (video) by Melih Bilgil
http://www.youtube.com/watch?v=9hIQjrMHTv4

Telephone (land and mobile)
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TYPES OF TRANSACTIONS & LEGAL ISSUES





Intellectual
property
Jurisdiction
Electronic Transactions Law

Contract
Business to business (B2B ecommerce)
Business to consumer (B2C ecommerce)
Privacy
Consumer to consumer (C2C)
Employer to employee (workplace communications)
Government to business (e-procurement)
security
Government to citizen
Labour Law
Tax
Delict
Fundamental
rights
Criminal
law
Consumer Law
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WHY DO WE NEED ELECTRONIC
TRANSACTIONS LAW?

Is it just like ‘the law of the horse’?
Electronic Transactions Law
Frank H. Easterbrook ‘Cyberspace and the Law of the
Horse’
Lawrence Lessig ‘The Law of the Horse: What
Cyberlaw Might Teach’
Do the unique characteristics of e-commerce
require the development of a separate body of
law/regulation?
 what is the policy framework for this law?

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SOUTH AFRICA’S E-COMMERCE POLICY


1.
Quality of life
2.
International Benchmarking
3.
Consultative process
4.
Flexibility
5.
Technology neutrality
6.
Supporting private-sector-led and technology-based solutions
and initiatives
7.
Public-Private partnership
8.
Supporting small, medium and micro enterprises (SMMEs) and
informal sector
Electronic Transactions Law
(1999) Discussion Paper
(2000) Green Paper identified the following underlying
principles (par 1.2):
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SOUTH AFRICA’S E-COMMERCE POLICY (2)
GREEN PAPER
Focus issues
1.
2.
3.
4.
the needfor confidence in the
security and privacy of
transactions performed
electronically;
to enhance the
information infrastructure
for electronic commerce;
to establish rules that will
govern electronic
commerce;
to bring the opportunities
of e-commerce to the
entire population
1.
Legal and regulatory
issues
2.
Building trust in the
digital economy
3.
Access, infrastructure and
enabling
4.
Technologies
5.
Maximising the benefits:
economic and social
impacts
* No White Paper
Electronic Transactions Law
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Themes
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POLICY (3)


Electronic Transactions Law
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National Information Society and Development Plan,
2007 (e-strategy required by s5(1) ECTA)
National Integrated ICT Policy Colloquium, 19 April
2012 (e-commerce & digitising government
commission) see overview at
http://kganyago.org/2012/04/24/the-beginning-of-abeginning-integrated-ict-policy-for-south-africa/
National Cyber Security Policy Framework for South
Africa approved by Cabinet, 2012
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DISCUSSION
Is the policy framework comprehensive and
meaningful?
 Has the policy framework lead to appropriate
legislation?

Electronic Transactions Law
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RELEVANT LEGISLATION
1.
2.
4.
5.
6.
7.
8.
9.
* And all relevant Regulations
Electronic Transactions Law
3.
The Constitution, 1996
The Promotion of Access to Information Act, 2000
Independent Communications Authority of South Africa
Act, 2000
Electronic Communications and Transactions Act, 2002
The Regulation of Interception of Communications Act,
2002
The Electronic Communications Act, 2005
National Credit Act, 2005
Consumer Protection Act, 2008
Protection of Personal Information Bill, 2009
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OTHER DOMESTIC SOURCES OF LAW
Common law (defamation, privacy contract)
 Trade usage and custom (standards, ‘code as
law’)
 Authoritative academic texts

Electronic Transactions Law
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INTERNATIONAL LAW

1.
Constitution ‘Customary international law is law in the
Republic unless it is inconsistent with the Constitution or an
Act of Parliament.’
3.
Domestic law is to be interpreted with recourse to
international law; s233 Constitution ‘When interpreting
any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with
international law over any alternative interpretation that is
inconsistent with international law.’
Electronic Transactions Law
2.
Impacts domestic law in 3 ways viz
informs domestic legislation e.g. ECTA &
UNICTRAL Model Law
Customary international law is binding; s232
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INTERNATIONAL LAW

Electronic Transactions Law
Article 38(1) of the Statute of the International Court of
Justice defines international law as:
(a) international conventions (treaties), whether
general or particular;
(b) international custom, as evidence of a general
practice accepted as law;
(c) the general principles of law recognized by
civilized nations;
(d) judicial decisions and teachings of the most
highly qualified publicists as subsidiary means for the
determination of rules of law.
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RELEVANT INTERNATIONAL LAW, SOME
EXAMPLES

United Nations Commission on International
Trade Law (UNCITRAL)
Model Law on Electronic Commerce (1996, revised 1998)

Model Law on Electronic Signatures (2001)

United Nations Convention on the Use of Electronic
Communications in International Contracts, 2005 (SA not a
party)
Electronic Transactions Law
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Task
Find and list other sources of relevant international law.
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SOME IMPORTANT INTERNATIONAL
AGENCIES
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Electronic Transactions Law
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UNICTRAL
ITU (International Telecommunication Union)
The United Nations Economic and Social Commission for
Asia and the Pacific(ESCAP)
Organisation for Economic Co-operation and Development
(OECD)
World Trade Organisation (WTO)
Southern African Development Community (SADC)
- Declaration on Information and Communications Technology
(ICT), 2001 & Draft SADC model law on electronic transactions
and electronic commerce, 2012
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Electronic Transactions Law
Electronic Transactions Law compiled by Caroline B
Ncube is licensed under a Creative Commons AttributionNonCommercial-ShareAlike 2.5 South Africa License.
To view this a copy of this license visit
http://creativecommons.org/licenses/by-nc-sa/2.5/za/
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