The ECT Act: Your Guide to the Law, Part 1
By Lance Michalson
This guide is a summary of the Electronic Communications and Transactions Act 2002 as published in Bill form and does not necessarily express the views of Michalsons Attorneys or Government.
The Electronic Communications and Transactions Act (“the Act”) is the result of Government’s e-commerce debate process initiated during 1999 with the Discussion Paper on electronic commerce and followed by the Green Paper published in November 2000.
The Act seeks to address the following policy imperatives:
* Bridging the digital divide by developing a National e-Strategy for South Africa;
* Ensuring legal recognition and functional equivalence between electronic and
* paper-based transactions;
* Promoting public confidence and trust in electronic transactions; and
* Providing supervision of certain service providers
Key issues sought to be addressed in the Act include:
Maximising benefits – creating a national e-strategy around the promotion of universal access to electronic transactions, especially for members from previously disadvantaged communities, SMMEs and differently abled people;
Legal certainty – providing for the legal recognition of electronic transactions, documents and signatures and facilitating record retention, electronic evidence and automated transactions;
E-government – encouraging electronic communications between Government and citizens;
Security – the registration of cryptography service providers, the accreditation of electronic signature technologies by authentication service providers and the protection of critical databases;
Protection of individuals – the protection of the consumer by stipulating minimum information to be provided to consumers and the protection of personal information and critical data;
Illegal activities and enforcement – the creation of new “cyber offences” and cyber-inspectors to administer certain provisions of the Act;
Effective management of internet-related issues – the establishment of a proper management regime with regard to domain names in the Republic of South Africa and the limitation of liability of Internet Service Providers.
What you should keep in mind:
* It is not prescriptive: although the Act does contain certain provisions which vendors should comply with when dealing with consumers, it leaves it up to you to decide how you should conduct your electronic communications and transactions. You can decide on the types of technologies and provide for your own contractual relationships. The Act does not interfere with your business dealings and relationships.
* The scope is broader than you may think: although the title of the Act creates the impression that it is mainly aimed at “buying goods over the internet”. The Act impacts far beyond what we traditionally associate with “e-business”. It deals with any type of electronic document or communication, whether that document or communication is used in a commercial transaction or not.
* Identify what is relevant to you – although the Act comprises 14 chapters and 95 sections, only a small portion of the Act may impact on your business. For example, chapter III will affect everyone while chapter XI will only affect Internet Service Providers and intermediaries.
Lance Michalson of Michalsons IT Law Attorneys was a member of the team responsible for drafting the Electronic Communications and Transactions Act on the instructions of the Department of Communications. He can be contacted on mailto:firstname.lastname@example.org or by phone on 021 438 6323