Recent Cases in E-commerce and Social media
Lex-Informatica – SA Cyberlaw / ICT Conference – 2014
“Legal Advancements in ICT Law / Cyberlaw”
25-26 September 2014
Sizwe Snail ka Mtuze
Director Snail Attorneys Inc
Adjunct Research Fellow – University of Fort Hare
South African response to
e-commerce – The Electronic
Communications and Transactions Act,
Act 25 0f 2002
South African response to e-commerce –
The Electronic Communications and
Transactions Act,
Act 25 0f 2002
• After many years of legal uncertainty, Parliament enacted the
Electronic
Communications
and
Transactions
Act,
Act 25 of 2002 (ECT) which comprehensively deals with
E-commerce as aspects and Cyber-crimes
• One must however, note section 3 of the ECT (its interpretation
clause) which does not exclude any statutory or common law from
being applied to, recognizing or accommodating electronic
transactions – in other words the common law or other statues in
place wherever applicable is still in force and binding which has the
result that wherever the ECT has not made specific provisions such
law will be applicable.
Legal recognition of data messages
After many years of legal uncertainty, on the 2nd August 2002, South African parliament assented to
and brought into force the Electronic Communications and Transactions Act (ECT) . Prior to the
Electronic Communications and transactions Act (ECT) , South Africa had not enacted any exclusive
Internet legislation that comprehensively defined the legal definitions of the terms “writing”,
”signature” and ”originals” in their application to electronic transacting.
The preamble of the ECT clearly shows that this is a piece of pioneering legislation “To provide for the facilitation and regulation of electronic communications and transactions; to
provide for the development of a national e-strategy for the republic; to promote universal access to
electronic communications and transaction and the use of electronic transactions by SMMEs; to
provide for human resource development in electronic transactions; to prevent abuse of information
systems; to encourage the use of e-government services; and to provide for matters connected
herewith.”
The recognition of data messages for the purposes of conducting legally relevant acts has now been
entrenched into our law by virtue of section 11 of the ECT.
It similarly follows Article 11 of the United Nations Commission on International Trade Model Law on
Electronic Commerce (UNICITRAL Model Law on E-Commerce) as well as Article 8 of United
Nations Convention on the use of Electronic Communications in International Contracts which states
that:
Legal recognition of data messages (cont.)
Section 11 of the ECT reads as follows:
(1) Information is not without legal force and effect merely on the grounds that it is wholly or partly in
the form of a data message.
(2) Information is not without legal force and effect merely on the grounds that it is, not contained in
the data message purporting to give rise to such legal force and effect, but is merely referred to in
such data message. Information incorporated into an agreement and that is not in the public
domain is regarded as having been incorporated into a data message if such information is:
(a)
referred to in a way which a reasonable person would have noticed the reference
NB :
thereto and incorporation thereof and;
(b)
accessible in a form in which it may be read
CASES DECIDED BY SOUTH AFRICAN COURT ON SECTION 11 and Section 12 of the ECT
See the case of S B Jafta v Ezemvelo KZN Wildlife ( Case D204/07 ) the Labour
Court had to decide as to whether an e-mail u and sms used to accept an employment
contract was regarded as conclusive proof the said employment had been accepted.
In another case the Labor Court in Mafika v SABC Ltd (LC case no: J 700/08)
held that the employee had validly resigned by way of SMS which constituted “writing” in
terms of the employment contract .
Signature requirements
Section 13 of the ECT ensures that data messages can satisfy the signature requirement by
providing that:
Section 13 of the ECT reads as follows:
(1)
Where the signature of a person is required by law, that requirement in relation to a data message
is met only if an advanced electronic signature is used.
(2)
Subject to subsection (1) an electronic data message is not without legal force and effect merely
on the grounds that it is in electronic form.
(3)
Where an electronic signature is required by the parties to an electronic transaction and the parties
have not agreed on the type of electronic signature to be used, that requirement is met in relation to a
data message if:
(a)
a method is used to identify the person and indicate the person’s approval of the information
contained and;
(b)
having regard to all relevant circumstances at the time the method was used; the method was as
reliable as was appropriate for the purposes for which the information was communicated.
4)
Where an advanced electronic signature has been used, such signature is regarded as having
created a valid electronic signature and to have been applied properly, unless the contrary is
proved.
(5)
Subsection (4) does not preclude any person from -
(a)
establishing the validity of an advanced electronic
signature in any other way; or
(b)
Adducing evidence of the non-validity of an advanced electronic signature.
Section 13 of the ECT ensures that data messages can satisfy the signature requirement. Section
13 (1) of the ECT provides, “Where the signature of a person is required by law, that requirement in
relation to a data message is met only if an advanced electronic signature is used.” However,
section 13 (2) states that an electronic signature shall not be without legal form merely because it is
in electronic form and does not necessarily preclude signatures that are not electronic advanced
signatures.
In the first instance as prescribed by section 13 (2) any electronic signature or a distinct electronic
mark could be sufficient for the existence of a digital contract. In the second instance as prescribed
by section 13 (1) the electronic signature would have to be advanced electronic signature and
would have to be provided by the South African Department of Communications (the identified
accreditation authority as required by section 13 (4) of the ECT). The third and last instance as
provided for by section 13 (3) is in the instance were an electronic signature has not been used at
all but the intent to be contractually bound has been expressed.
Writing
Where data messages are used to communicate messages or documentation, the question
arises as to whether such data messages have legal validity equal to messages written on
paper. Is the employer effectively bound by the correspondences that are entered into by
his bona fide employees? What is the status of electronic writing and electronic signatures?
(E.g. E-mail, Blackberry etc)
Section 12 of the ECT reads as follows:
A requirement under law that a document or information be in writing is met if the document
or information is (a)
in the form of a data message; and
(b)
accessible in a manner usable for subsequent reference
The intentions of the legislature are clear from the simple wording of the above provision.
Furthermore, section 22 (1) of the ECT guarantees the validity of agreements concluded
either partly or wholly by a data message
Mafika v SABC Ltd (LC case no: J 700/08) held that the employee had
validly resigned by way of SMS which constituted “writing” in terms of the
employment contract .
The ECT specifically however excludes four different instances were and electronic
writing or signature would not be valid. The four excluded acts are :
1.
Concluding an agreement for the Alienation (disposal) of immovable property as
provided for in the Alienation of Land Act .
2.
Concluding an agreement for a long-term of immovable property in excess of 20
years as provided for in the Alienation of Land Act .
3.
The execution of a bill of exchange as defined in the Bills of Exchange Act .
4.
The execution, retention and presentation of a will or codicil as defined in the Wills
Act .
CASES DECIDED BY SOUTH AFRICAN COURT ON SECTION 13 OF ECT
Mac Donald v The Master 2002 5 (SA) O 697 the Court held, a Court may condone a “draft will” in
the form of an electronically stored document, which was stored on a computer hard-disk in terms of
section 2(3) of the Wills Act, if not all statutory requirements have been satisfied and admit such as
valid proof of an existing will and also Van der Merwe v the Master .
Time and place of where the contract enters into effect
The moment and place of contract conclusion of electronic contracts are now being regulated
by section 22 (2) of the ECT which states: Section 22 (2) of the ECT states the following:
“An agreement concluded between parties by means of data messages is concluded at the
time and place where the acceptance of the offer was received by the offeror “
Section 23 of the ECT states the following:
A data message –
(a)
Used in the conclusion or performance of an agreement must be regarded as
having been sent by the originator when it enters an information system outside the
control of the originator or, if the originator and addressee are in the same information
system ,when it is capable of being retrieved by the addressee
(b)
must be regarded as having been received by the addressee when the complete data
message enters an information system designated or used for that purpose by the
addressee and is capable of being retrieved and processed by the addressee; and
(c)
must be regarded as having been sent from the originators usual place of business or
residence and as having been received at the addressee’s usual place of business or
residence
See the case of S B Jafta v Ezemvelo KZN Wildlife ( Case D204/07 )
•
Privacy and Social Media
Caselaw Studies from
South Africa
The Right to Privacy and Dignity and
social media
• The Right to Privacy and Dignity in terms of Constitution is
enshrined in Section 14 of the Bill of Rights provides that:
• “Everyone has the right to privacy, which includes the right not to
have- (a) their person or home searched; (b) their property
searched; (c) their possessions seized; or (d) the privacy of their
communications infringed.”
• In addition Section 10 of the Bill of Rights provides that “Everyone
has inherent dignity and the right to have their dignity respected and
protected.”
• In addition Section 86 of the in Electronic Communications Act 25 of
2002 (ECT) several part of RICA Act 70 of 2002 have outlawed
unlawful interception and monitoring of communications save for
where there is written consent or there are legality accepted grounds
of justification as stipulated in the RICA or you are a party to the
communication.
Privacy and Social Media Caselaw Studies
from South Africa
• The risk of the use Social Media for attorneys and their clients has
become a serious legal issue in light of the “right to privacy “ and the
“right of freedom of expression” as enshrined in our Constitution.
• Our Courts have not been oblivious to technological development
and have started accepting that the internet and social media can be
used as a suitable medium to serve Court papers were suitable
( see the case of CMC Woodworking Machinery (Pty) Ltd v Pieter
Odendaal Kitchens (KZD) ), (unreported case no 6846/2006, 3-82012 )
• employees dismissal can been confirmed by the CCMA based on
social media misconduct , the Courts may grant interdicts against
persons ordering them to remove offensive or defamatory content
from public social media pages and also the extension of the claim
for damages as a result from defamation on a social media platform
has now been recognised and confirmed.
Do you have a legitimate expectation on
social media platforms ?
•
•
•
•
Do you still have a legitimate expectation right to privacy ( as stated in the
case of Bernstein v Bester ) by mere setting your social media setting to a
select few ? [1996] 2 SA 751 (cc)
Everybody has the right not have his private social media account to be
hacked and personal information being disseminated or particulars views
expressed to the public without their prior consent.
This should be seen in light of Section 16(1) of the Bill of Rights provides
that “Everyone has the right to freedom of expression, which includes(a) freedom of the press and other media; (b) freedom to receive or impart
information or ideas; (c) freed of artistic creativity; and (d) academic
freedom and freedom of scientific research.” The exposure of ones views
on a particular issues may be legally their right on their private social media
page but if such information were to be leaked the right to freedom of
expression must be balanced with the right of other not to be disparaged or
defamed.
The Right to Privacy as Interpreted by the Courts
Privacy and Social Media Caselaw
Studies from South Africa
Sedick & another v Krisray (Pty) Ltd (2011) 8 BLLR 979
(CCMA) – defamatory pasting about employer on
Facebook dismissible
Fredericks v Jo Barkett Fashions [2011] JOL 27923
(CCMA) - defamatory pasting about employer on
Facebook dismissible
Privacy and Social Media Caselaw
Studies from South Africa
Media Workers Association of SA obo Mvemve v Kathorus Community
Radio (2010) 31 ILJ 2217 (CCMA)
* the employee of a radio station criticised the organisation’s board and
claimed its station manager was a criminal. The CCMA found that the
employee was fairly dismissed as he had posted unfounded allegations on
Facebook without having addressed these internally first.
Smith v Partners in Sexual Health (non-profit) (2011) 32 ILJ 1470 (CCMA)
* employer must not access employee private mails even if auto login
function on at work computer,
Privacy and Social Media Caselaw
Studies from South Africa
• HvW
* Users of Facebook may be interdicted and ordered to
remove defamatory comments of facebook .
• Isparta v Richter
* Liking a defamatory post on Facebook may result in a
suits for damages
• R ,K ,M v R, L ,B
* Users of Facebook may be interdicted and ordered to
remove defamatory comments of facebook .
Privacy v Right to Freedom of
Expression
• CCMA is prepared to consider what an employee says on
his/her social media profile in determining the substantive
fairness of a dismissal
• Employees who make derogatory, harassing or discriminatory
remarks on social media, do so at their own peril
• Freedom of expression versus privacy
• Freedom of expression does not amount to an unfettered right
to defame others
SOCIAL MEDIA USE, ABUSE AND MISCONDUCT, Lenja Dahms-Jansen (2013) ,
Q&A
Contact Us:
Sizwe Lindelo Snail
E-mail
www
Tel / Fax
Fax
Cell
: ssnail@Snailattorneys.com / Sizwe_snail@yahoo.com
: www.snailattorneys.com
: (012) 362 8939
: (086) 617 5721
: (083) 477 4377