electronic transactions law lecture series: lecture 1 introduction


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These are teaching slides for my undergraduate electronic law class.

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electronic transactions law lecture series: lecture 1 introduction

  1. 1. Electronic Transactions Law INTRODUCTION Department of Commercial Law1 University of Cape Town
  2. 2. ELECTRONIC TRANSACTIONS LAW *"Whats in a name? That which we call a rose by any other name would smell as sweet."Romeo and Electronic Transactions Law Juliet (II, ii, 1-2) law@IT , cyberlaw@SA, ICT law, IT law, technology law, tech law, computer law, electronic law, social or new media law, digital media law, internet law, cyber law, and web law. 2
  3. 3. WHAT IS AN ELECTRONIC TRANSACTION? No definition in the Electronic Communications and Transactions Act No. 25 of 2002 (ECTA) Working def: commercial and non-commercial transactions Electronic Transactions Law concluded wholly or partially through electronic communications, including e-government services S1 ECTA : ‘electronic communication means a communication by means of data messages’ ‘data message’ means data generated, sent, received or stored by electronic means and includes (a)voice, where the voice is used in an automated transaction; and (b) a stored record; ‘data’ means electronic representations of information in any form 1. Does the definition of data messages include voice, where it is not used in an automated transaction? 3 2. Is the definition of electronic communication in ECTA substantively different from that in the Electronic Communications Act?
  4. 4. TECHNOLOGIES Internet (via computers, TVs and mobile phones) Online ‘tools’: websites, email, VOIP, social networks Electronic Transactions Law R Buys & J Rothman ‘the internet: an overview’ in Cyberlaw@SA http://www.cyberlawsa.co.za/cyberlaw/cybertext/chapter1.htm B M Leiner et al ‘Brief history of the internet’ http://www.internetsociety.org/internet/internet-51/history- internet/brief-history-internet History of the internet (video) by Melih Bilgil http://www.youtube.com/watch?v=9hIQjrMHTv4 Telephone (land and mobile) 4
  5. 5. TYPES OF TRANSACTIONS & LEGAL ISSUES Business to business (B2B ecommerce) Contract Business to consumer (B2C ecommerce) Privacy Consumer to consumer (C2C) Electronic Transactions Law Employer to employee (workplace communications) Government to business (e-procurement) security Government to citizen Labour LawIntellectual Taxproperty Criminal law Jurisdiction Delict Fundamental Consumer Law 5 rights
  6. 6. WHY DO WE NEED ELECTRONICTRANSACTIONS LAW? Is it just like ‘the law of the horse’? Frank H. Easterbrook ‘Cyberspace and the Law of the Electronic Transactions Law Horse’ Lawrence Lessig ‘The Law of the Horse: What Cyberlaw Might Teach’ Do the unique characteristics of e-commerce require the development of a separate body of law/regulation? what is the policy framework for this law? 6
  7. 7. SOUTH AFRICA’S E-COMMERCE POLICY (1999) Discussion Paper (2000) Green Paper identified the following underlying principles (par 1.2): Electronic Transactions Law1. Quality of life2. International Benchmarking3. Consultative process4. Flexibility5. Technology neutrality6. Supporting private-sector-led and technology-based solutions and initiatives7. Public-Private partnership8. Supporting small, medium and micro enterprises (SMMEs) and informal sector 7
  8. 8. SOUTH AFRICA’S E-COMMERCE POLICY (2)GREEN PAPERFocus issues Themes Electronic Transactions Law the need- 1. Legal and regulatory issues1. for confidence in the 2. Building trust in the digital security and privacy of transactions performed economy electronically; 3. Access, infrastructure and2. to enhance the information enabling infrastructure for electronic commerce; 4. Technologies3. to establish rules that will 5. Maximising the benefits: govern electronic economic and social commerce; impacts4. to bring the opportunities of e-commerce to the entire population 8 * No White Paper
  9. 9. POLICY (3) National Information Society and Development Plan, 2007 (e-strategy required by s5(1) ECTA) Electronic Transactions Law National Integrated ICT Policy Colloquium, 19 April 2012 (e-commerce & digitising government commission) see overview at http://kganyago.org/2012/04/24/the-beginning-of-a- beginning-integrated-ict-policy-for-south-africa/ National Cyber Security Policy Framework for South Africa approved by Cabinet, 2012 9
  10. 10. DISCUSSION Is the policy framework comprehensive and meaningful? Electronic Transactions Law Has the policy framework lead to appropriate legislation? 10
  11. 11. RELEVANT LEGISLATION1. The Constitution, 19962. The Promotion of Access to Information Act, 2000 Electronic Transactions Law3. Independent Communications Authority of South Africa Act, 20004. Electronic Communications and Transactions Act, 20025. The Regulation of Interception of Communications Act, 20026. The Electronic Communications Act, 20057. National Credit Act, 20058. Consumer Protection Act, 20089. Protection of Personal Information Bill, 2009 11 * And all relevant Regulations
  12. 12. OTHER DOMESTIC SOURCES OF LAW Common law (defamation, privacy contract) Trade usage and custom (standards, ‘code as law’) Electronic Transactions Law Authoritative academic texts 12
  13. 13. INTERNATIONAL LAW Impacts domestic law in 3 ways viz1. informs domestic legislation e.g. ECTA & UNICTRAL Electronic Transactions Law Model Law2. Customary international law is binding; s232 Constitution ‘Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.’3. Domestic law is to be interpreted with recourse to international law; s233 Constitution ‘When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.’ 13
  14. 14. INTERNATIONAL LAW Article 38(1) of the Statute of the International Court of Justice defines international law as: (a) international conventions (treaties), whether general Electronic Transactions Law or particular; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) judicial decisions and teachings of the most highly qualified publicists as subsidiary means for the determination of rules of law. 14
  15. 15. RELEVANT INTERNATIONAL LAW, SOMEEXAMPLES United Nations Commission on International Trade Law (UNCITRAL) Electronic Transactions Law  Model Law on Electronic Commerce (1996, revised 1998)  Model Law on Electronic Signatures (2001)  United Nations Convention on the Use of Electronic Communications in International Contracts, 2005 (SA not a party) Task Find and list other sources of relevant international law. 15
  16. 16. SOME IMPORTANT INTERNATIONAL AGENCIES UNICTRAL ITU (International Telecommunication Union) Electronic Transactions Law The United Nations Economic and Social Commission for Asia and the Pacific(ESCAP) Organisation for Economic Co-operation and Development (OECD) World Trade Organisation (WTO) Southern African Development Community (SADC) - Declaration on Information and Communications Technology (ICT), 2001 & Draft SADC model law on electronic transactions and electronic commerce, 2012 16
  17. 17. Electronic Transactions Law Electronic Transactions Law compiled by Caroline BNcube is licensed under a Creative Commons Attribution- NonCommercial-ShareAlike 2.5 South Africa License. To view this a copy of this license visit http://creativecommons.org/licenses/by-nc-sa/2.5/za/ 17