The ECT Act introduced to South Africa formal legal recognition of electronic commerce. It provides for the facilitation and regulation of electronic communications and transactions, including issues relating to electronic signatures, electronic evidence and computer crimes. Its primary objective is to facilitate and to provide legal certainty on e-commerce and electronic records.
The Regulation of Interception of Communication and Provision of Communication Regulated Information Act 70 of 2002 (RICA) prohibits the interception of communications and makes it a criminal offence to do so. This follows on from the previous legal situation under the Interception and Monitoring prohibition Act 127 of 1992 but the provisions have been made significantly more sophisticated and they apply to all form of communication, both direct (face to face) and indirect (including post and all forms of electronic communication or telecommunication, such a telephone, fax, email, network or Internet messaging etc). It is thus unlawful to monitor or intercept communications unless (i) you have a directive from a judge, or (ii) you are a law enforcement agency in some other special circumstances), or (iii) you are a party to that communication, or (iv) one or more of the parties to that communication have consented, or (v) it is for a business purpose and you have gone through some important procedural steps, (vi) or to determine location in emergencies, (vi) in terms of another law.
Business agreements (including business conducted via the Internet) will soon be regulated by the Consumer Protection Bill (the third draft currently available from the Department of Trade and Industry), which will bring about remarkable changes to the existing South African law of contract and will impact significantly on all website terms and conditions which will have to be revisited.
Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through – e-Commerce 2009, (published in August 2008 – contributing editor Robert Bond). For further information please visit www.GettingtheDealThrough.com.