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The ECT Act: Your Guide to the Law, Part 2

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.

Synopsis of the Act

Chapter I: Interpretation, Objects and Application

This part of the Act defines critical words and phrases and sets out the main objects of the Act.

Chapter II: Maximising Benefits and Electronic Policy

The objective is to maximize the benefits the Internet offers by promoting universal and affordable access by all to its possible applications, with a view to bridging the digital divide. The Act requires the development of a national e-Strategy plan by the Minister, in consultation with members of Cabinet. The national e-Strategy plan must include detailed plans and programmes to address the development of a national e-transactions strategy, the promotion of universal access and e-readiness, SMME development, empowerment of previously disadvantaged persons and communities, human resource development, contain definable objects and timeframes.

Chapter III: Facilitating Electronic Transactions

This Chapter deals with the removal of legal barriers to electronic transacting. Chapter 1 provides for the legal recognition to data messages and records. Provision is made for the legal recognition of electronic signatures and “advanced electronic signatures” – a secure form of electronic signing. Electronic data will, subject to certain conditions, be permitted to be retained for statutory record retention purposes; regarded as “writing” a true copy of an “original” record, and provision is made for securing proper evidentiary weight of electronic evidence.

Chapter 2 deals with the rights and obligations that follow from the communication of data messages, namely contract formation, the time and place of sending and receiving data messages, as well as the time and place where a contract is deemed to have been formed by means of data messages. The Act also provides for the validity of sending notices and other expressions of intent through data messages.

Chapter IV: E-government

This Chapter facilitates electronic filing. It lists the requirements for the production of electronic documents and the integrity of information. Provision is made for a Department or Ministry to accept and transmit documents in the form of electronic data messages, to issue permits or licences in the form of a data message or make or receive payment in electronic form.

Chapter V: Cryptography Providers

The Internet presents security challenges which, without an effective regulatory framework, would pose a threat to the security of consumers and the State. This Chapter requires the suppliers of cryptography materials to register in the prescribed manner their names and addresses, the names of their products and a brief description thereof maintained by the Department of Communications. This will allow investigative authorities such as the SAPS, to identify which organisation provide the encryption technologies, intercepted by them in terms of our monitoring and interception laws. This will enable the investigative authorities to approach these service providers to assist with deciphering the encrypted messages.

Chapter VI: Authentication Service Providers

Identification and authentication of the parties in cyberspace remains a challenge and poses threats to consumers and businesses. The Bill seeks to provide for the establishment of an Accreditation Authority within the Department, allowing voluntary accreditation of electronic signature technologies in accordance with minimum standards. Once accredited, these “advanced” electronic signatures will allow a party to rely on their authenticity.

(next: Part 3 – Chapters VII to XIII)

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:lance@michalson.com or by phone on 021 438 6323

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The Big Change is a business strategy blog and newsletter published by Arthur Goldstuck, managing director of World Wide Worx, a leading technology research organisation based in Johannesburg, South Africa.

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