Alignment of South African ECommerce Law Tana Pistorius

Alignment of South African ECommerce Law Tana Pistorius Department of Mercantile Law UNISA CYBER LAW @ SA 3 – CONFERENCE & BOOK LAUNCH

Alignment • External • Internal • Back to square one

External alignment

UNCITRAL MLES UNCITRAL Convention 4 Commonwealth Model Laws OECD Guidelines HIPCAR Model Law Draft AU Cyber security Convention COMESA ML Supplementary Law for Digital Transactions for ECOWAS Legislation of SADC members UETA UECA

United Nations Conventions on the Use of Electronic Communications in International Contracts, 2005 UNECIC UNCITRAL Model Laws COMESA

Regional Imperatives • African Cyber Convention • SADC Model Law

Internal alignment

2 Pivotal principles • Functional equivalence – Translation of requirement to electronic environment – Media neutrality • Technology neutrality – No prescribed technology – Flexible- accommodate future technologies

Legislative alignment • Legal certainty • Protection of individuals

• Law requires person to produce a document met by data message – electronic form of document or info if: – Method reliable to assure maintenance of integrity – Time was sent, reasonable expect

ECT Rules • Integrity maintained by information being complete and unaltered except for: a)Addition of any endorsement; or b)Any immaterial change, which arises in the normal course of communication, storage or display.

Companies Act, 2008 ‘‘electronic communication’’ has the meaning set out in section 1 of the Electronic Communications and Transactions Act; Anti-avoidance, exemptions and substantial compliance 6(7) An unaltered electronically or mechanically generated reproduction of any document, other than a share certificate, may be substituted for the original for any purpose for which the original could be used in terms of this Act.

Illustration: Time of contracting

ECT Rules • Sec 23(1) Sent: – data message enters info system out of control of originator/ – Same info system: capable of being retrieved • Sec 23(2) Received: – complete data message enters info system – Designated or used for purpose – & capable of being retrieved and processed

Companies Act • 6(10) If, in terms of this Act, a notice is required or permitted to be given or published to any person, it is sufficient if the notice is transmitted electronically directly to that person in a manner and form such that the notice can conveniently be printed by the recipient within a reasonable time and at a reasonable cost.

Company Regulations: Table CR 3 Method and times of delivery of documents Method of delivery Date and time deemed delivered Notice or copy of document electronic mail Date and time recorded by computer used by sender unless conclusive evidence that it was delivered at different date/time Transmission of document as separate file On date and time recorded by Tribunal’s attached to e-mail message addressed to computer system; unless within 1 recording officer of Tribunal business day after that date recording officer advises that file is unreadable.

Critical databases – Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 – Protection of Constitutional Democracy against Terrorist and related Activities Act 33 of 2004. – “critical electronic communications infrastructure” in SITA Act.

ECT Definition • Data message

Consumer Protection Act • “Electronic communication” communication by means of electronic transmission, including telephone, fax, SMS, wireless computer access, e-mail or similar technology or device

Uniform Rules of Court 4 A (1) Service of all subsequent documents and notices… (c) facsimile or electronic mail to the respective addresses provided (3) Chapter III, Part 2 of the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002) is applicable to service by facsimile or electronic mail. (6) The filing with the registrar of originals of documents and notices referred to in this rule shall not be done by way of facsimile or electronic mail. ” • CMC WOODWORKING MACHINERY (PTY) LTD v PIETER ODENDAAL KITCHENS Case No: 6846/2006 Facebook service

Intellectual Property Laws • CIPC E-Government service • E-filing project

Regulations 1 A • Registrar – electronic services (4) Unless another form of electronic signature is specified in the operating requirements, any signature requirement under the Act or these regulations in respect of a record to be accessed from or lodged with CIPRO is satisfied by the CIPRO user entering his access code on the CIPRO system and any record lodged after the CIPRO user having entered the access code shall be deemed to have been duly signed by the person whose signature is required under the Act or these regulations for purposes of such record.

• Electronic signatures • Statutory requirement

CONCLUSION: ALIGNMENT Priority Legal certainty Coherence E-commerce uptake