Many organisations are reviewing processes and looking for ways to do them electronically and automatically. Putting digital first or moving from a paper-based environment to a digital environment. There are obviously huge benefits to going digital – saving time and money being the most obvious. For example, many organisations are implementing the Companies Act electronically or using automated decision-making.

When you move a physical or paper-based process online, it is crucial to consider the laws that apply to the electronic transactions involved. Manage the legal risk of automating or electrifying a process by asking us to review it, identify the issues, and draft a report.

Lawyers should be measured on what they lawfully enable, not what they stop.

The laws that could be relevant to electronic processes

There are actually quite a few laws that relate to electronic transactions or processes. The interaction between these different laws is also very important. Here are a few of the laws that are relevant:

  • The Electronic Communications and Transactions Act (ECT Act) facilitates and enables electronic transactions. It also includes consumer protection provisions that specifically relate to electronic transactions. It also enables the use of electronic signatures.
  • Data protection laws (including POPIA and the GDPR) are also relevant. Processes generally involve processing personal information, so an organisation must ensure its processing complies with data protection laws.
  • The Consumer Protection Act (CPA) relates to any transaction between a supplier and a consumer. It can therefore have a big impact on the transaction, depending on various factors.
  • Some case law deals with electronic contracting, including contracting by email and SMS.
  • Other laws may also apply. For example, the Companies Act, the Rental Housing Act, or the National Credit Act could apply.
  • The law related to electronic evidence.

The issues that could arise

Many issues can arise when you automate a process electronically. Here are some of the most important ones:

  • Acceptance – when is an offer that you make electronically accepted? Is deemed acceptance (e.g. a ‘browsewrap agreement’ on a website) sufficient, or is actual acceptance (e.g. a clickwrap agreement on a website) required?
  • Proof – what information do you have to collect to prove that an offer was accepted?
  • Authentication – how do you know who you are dealing with?
  • Privacy – what information can you collect? What can you do with this information once you collect it?
  • Liability – what risks do you face if the process is not automated in compliance with the law?

Review and report

You have to consider all of these laws and the manner in which they interact to make sure that you comply with the law when you make a process automatic and electronic. We can review your process, identify the issues, and draft a report that sets out:

  • the risk or issue,
  • the laws that apply to the different aspects of that process, and
  • our suggested solutions to help you ensure it complies with the law.