There is currently no definition of “record” that is universally used by all organisations. The simple reason for this is that definitions serve the community that they are created by and each community has different needs.
What is a record?
Whilst not in itself a law, the South African National Standard on Records Management (SANS 15489) defines a record as: “information created, received, and maintained as evidence and information by an organisation or person, in pursuance of legal obligations or in the transaction of business“.
This definition therefore covers records which the law and the business require be retained.
All organisations in all industries are required to retain certain electronic and paper-based records. The difficulty lies in giving practical effect to these laws as they focus on the need to retain the record based on its content and often do not:
- focus on the specific medium that is used to transmit or house the record (e.g. e-mail, Word document or paper); or
- identify precisely what the actual record is as this is often not apparent from the statute.
Where the law requires an organisation to keep records, sections 14 (original) and 16 (retention) of the ECT Act allow you to keep the record in electronic form, provided that you implement a reliable, auditable process. However, the ECT Act does not override laws where electronic retention is expressly precluded or where certain requirements for electronic storage are specified (e.g. taxation laws).
No procedural or technological standards
An important point to note is that the ECT Act, unlike some foreign laws, does not provide procedural or technological standards that have to be followed in order to ensure that a record will be legally valid. It does not prescribe any technical functional requirements and leaves it up to the implementing technology companies to determine the best approach on their own.