I NTRODUCTION Department of Commercial Law University of Cape Town 1 Electronic Transactions Law

E LECTRONIC 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) 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. 2 Electronic Transactions Law

W HAT IS AN ELECTRONIC TRANSACTION ? N o 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 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 3 Electronic Transactions Law 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?

TECHNOLOGIES Internet (via computers, TVs and mobile phones) Online ‘tools’: websites, , VOIP, social networks Telephone (land and mobile) 4 Electronic Transactions Law R Buys & J Rothman ‘the internet: an overview’ in B M Leiner et al ‘Brief history of the internet’ internet/brief-history-internet History of the internet (video) by Melih Bilgil

T YPES OF TRANSACTIONS & LEGAL ISSUES Business to business (B2B ecommerce) Business to consumer (B2C ecommerce) Consumer to consumer (C2C) Employer to employee (workplace communications) Government to business (e-procurement) Government to citizen 5 Electronic Transactions Law Contract Privacy Labour Law Criminal law Consumer Law Delict Jurisdiction Fundamental rights security Intellectual property Tax

W HY DO WE NEED ELECTRONIC TRANSACTIONS LAW ? Is it just like ‘the law of the horse’? 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? 6 Electronic Transactions Law Frank H. Easterbrook ‘Cyberspace and the Law of the Horse’ Lawrence Lessig ‘The Law of the Horse: What Cyberlaw Might Teach’

S OUTH A FRICA ’ S E - COMMERCE POLICY (1999) Discussion Paper (2000) Green Paper identified the following underlying principles (par 1.2): 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 7 Electronic Transactions Law

S OUTH A FRICA ’ S E - COMMERCE POLICY (2) GREEN PAPER Electronic Transactions Law 8 the need- 1. for confidence in the security and privacy of transactions performed electronically; 2. to enhance the information infrastructure for electronic commerce; 3. to establish rules that will govern electronic commerce; 4. 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 Focus issuesThemes * No White Paper

P OLICY (3) 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 beginning-integrated-ict-policy-for-south-africa/ beginning-integrated-ict-policy-for-south-africa/ National Cyber Security Policy Framework for South Africa approved by Cabinet, Electronic Transactions Law

D ISCUSSION Is the policy framework comprehensive and meaningful? Has the policy framework lead to appropriate legislation? 10 Electronic Transactions Law

R ELEVANT L EGISLATION 1. The Constitution, The Promotion of Access to Information Act, Independent Communications Authority of South Africa Act, Electronic Communications and Transactions Act, The Regulation of Interception of Communications Act, The Electronic Communications Act, National Credit Act, Consumer Protection Act, Protection of Personal Information Bill, Electronic Transactions Law * And all relevant Regulations

O THER DOMESTIC SOURCES OF LAW Common law (defamation, privacy contract) Trade usage and custom (standards, ‘code as law’) Authoritative academic texts 12 Electronic Transactions Law

I NTERNATIONAL LAW Impacts domestic law in 3 ways viz 1. informs domestic legislation e.g. ECTA & UNICTRAL Model Law 2. Customary international law is binding; s232 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.’ 13 Electronic Transactions Law

I NTERNATIONAL 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. 14 Electronic Transactions Law

R ELEVANT I NTERNATIONAL L AW, 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) 15 Electronic Transactions Law Task Find and list other sources of relevant international law.

S OME IMPORTANT INTERNATIONAL AGENCIES 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, Electronic Transactions Law

17 Electronic Transactions Law compiled by Caroline B Ncube is licensed under a Creative Commons Attribution- NonCommercial-ShareAlike 2.5 South Africa License. To view this a copy of this license visit