Regulatory bodies responsible for the regulation of e-commerce

Which, if any, regulatory bodies are responsible for the regulation of e-commerce and Internet access tariffs and charges?

E-commerce is regulated to a limited extent in South Africa in the 4 areas mentioned hereunder by either the DOC or the Consumer Affairs Committee established under the Consumer Affairs (Unfair Business Practices) Act 71 of 1988.

• DOC: Registration of cryptography products and services: Chapter 5 of the ECT Act requires that suppliers (not users) of “cryptography” services or products register their names and addresses, the names of their products with a brief description in a register maintained by the Department of Communications. Unless the (local or foreign) supplier has registered, they cannot provide their services or products in South Africa.

• DOC: The use of “advanced electronic signatures”: Chapter 6 of the ECT Act provides for the establishment of an Accreditation Authority within the DOC, allowing voluntary accreditation of electronic signature technologies in accordance with minimum standards. Once accredited, these Government endorsed “advanced” electronic signatures can be used by parties who have to sign by means of an “advanced” electronic signature where required “by law”.  In addition, the legislature has created a presumption of integrity where “advanced” electronic signatures are used – i.e. they will allow a party to place reliance on its authenticity by shifting the burden of proof onto the signatory to disprove its authenticity.  It has also created a benefit in favour of those processes which have been accredited, which is recognised as particularly reliable.

• Consumer Affairs Committee: Selling goods or services from a website: Chapter 7 of the ECT Act requires that suppliers provide consumers with a minimum set of information, including the price of the product or service, contact details, and the right to withdraw from an electronic transaction before its completion. A consumer may lodge a complaint with the Consumer Affairs Committee in respect of any non-compliance with the provisions of Chapter 7 by a supplier.

• Consumer Affairs Committee: Unsolicited communications (SPAM): Consumers have the right not to be bound to unsolicited communications and the sender of the unsolicited communication must at the request of the consumer provide the identifying particulars of the source from which it obtained the consumer’s personal information. A person who continues to send unsolicited communications to a consumer after having been advised that unsolicited communications are not welcome commits an offence. A consumer may also lodge a complaint with the Consumer Affairs Committee.

Tariffs and charges

The Independent Communication Authority of South Africa (ICASA) regulates certain Internet access tariffs and charges. ICASA was established in July 2000 with the merger of the telecommunications regulator (Telecommunications Regulators Association of Southern Africa) and the broadcasting regulator (Independent Broadcasting Authority). ICASA was established in terms of The Independent Communication Authority of South Africa Amendment Act of 2000, later amended in 2005.

ICASA regulates the telecommunications and broadcasting industries in the public interest and issues licenses to providers of telecommunication services and broadcasters.

The Electronic Communications Act of 2005 has inter alia the objective of ensuring the provision of a variety of quality electronic communications services at reasonable prices. It makes provision for Internet services to public schools and public further education and training institutions at a minimum discounted rate of 50% of the total charge levied by a licensee that provides internet services to such schools or institutions.

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.