cell c department comments on electronic commerce & transactions bill wednesday, 15 may 2002
TRANSCRIPT
Cell C Department
Comments on Electronic Commerce & Transactions Bill
Wednesday, 15 May 2002
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Cell C Representatives
• Zwelakhe Mankazana: Director• Pierre Obeid: Senior Network
Operations & Maintenance Manager
• Nerisha Pillay: Legal Advisor• Pheladi Gwangwa: Regulatory Planning
Manager• Dewald Jacobsohn E-commerce System
Administrator
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Presentation Overview
Introduction Purpose of Bill National e-strategy Facilitating electronic transactions Automated transactions Consumer protection Protection of personal information Universal Service Conclusion
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Introduction
SA must develop law in harmony with international best practice to ensure global trading, whilst taking cognisance of unique SA circumstances, like the need for universal service
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Introduction
Any person concluding a transaction electronically must be confident that it will be:
• capable of being concluded, • enforceable; and • that confidentiality will not be
compromised
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Purpose of ECT Bill
To facilitate electronic transactions & communications by:
• the promotion of legal certainty;• the creation of confidence & trust in
electronic transactions;• the promotion of universal
accessibility
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National e-strategy – (Section 5)
The national e-strategy must, inter alia, set out :
• the role expected to be performed by private sector ;
• how Government can solicit participation by private sector to perform such role
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National e-strategy continued…
Cell C’s view is that:• Government should not seek to introduce
additional obligations into the market to bring e-commerce to society hurriedly;
• Rather:• should consult with private sector players
like Cell C in the formation and implementation of e-strategy;
• to maximise on their existing social economic development plans.
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Facilitating electronic transactions
• E-commerce is a substitute for paper-based commercial transactions.
• Two of its main objectives are:• transparency; and • equivalence
• Proper, suitable framework needed taking into account requirements of:
• Police;• Reserve Bank;• Law Commission;• Ministry of Justice
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Facilitating electronic transactions
• Some existing laws are capable of capturing e-commerce concerns;
• however further laws required to support and legitimise e-commerce practices
• As evidenced by international jurisprudence
• Some examples include:• electronic writing & signature;amendment to civil and
criminal evidential laws to recognise electronic evidence; intellectual property law; payment systems;taxation; jurisdiction
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Facilitating electronic transactions
• In order to facilitate e-commerce:• a transaction entered into
electronically should not need to be reinforced by any additional activity;
• transaction on its own must have legal effect and be enforceable
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Facilitating electronic transactions
• Further requirements include:• the ability of transaction to be recognised as legally
binding by courts;• the electronic evidence of transaction should be
capable of constituting sufficient proof of transaction;• certainty as to which forum/court should be
approached by party wishing to enforce rights;• the need for user to be confident that electronic
payments made/received constitute actual payments;• security in electronic delivery mechanisms
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Facilitating electronic transactions
• Without certainty on these issues, environment not conducive to development of e-commerce
• Uncertain legal framework and need to simulate earlier electronic transaction in paper-based format constitute significant barrier to wider use of e-commerce in SA
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Facilitating electronic transactions
• Coupled with uncertainty:• networks utilised for the operation of e-commerce
make it borderless and instantaneous;
• Accordingly, uncertainty exists as to:• the time and place where electronic contracts are
concluded;• which countries laws govern the contract and to what
extent
• Affects ability of authorities to control, monitor and regulate electronic trade
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Facilitating electronic transactions
Electronic Signatures• A number of electronic signature
possibilities exist, for eg:• e-mail, scanned manuscript signature, digital
signatures, the clicking of a web button, the typing of a name, etc
• Challenge in conducting e-business with such a wide range is to ensure that person providing electronic signature is the person he/she is claiming to be
• Simple electronic signatures (e-mails and scans) provide for potential risk of fraud
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Facilitating electronic transactions
• Considerable number of concerns around electronic signature, are not and cannot be comprehensively dealt with in Bill
• Internationally, separate legislation created to address electronic signature issues, for eg:
• UNCITRAL Model Law on Electronic Signatures adopted by UNCITRAL in July 2001
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Automated transactions
• Cell C’s concern relates to the actual point at which the terms and conditions of a transaction are reviewable: Is it when
• software is being programmed;• customer displays details of purchase,etc
• Drafters intention is unclear• Irrespective, as currently drafted, open to
abuse and removes certainty as to how and when contract concluded
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Consumer protection
• Ito S45, a consumer is entitled to cancel a transaction without reason:
• for the supply of goods within 7 days after receipt of goods;• of services, within 7 days after conclusion of agreement
• Only cost that may be levied on consumer is “direct cost of returning the goods”
• Clarity is sought on what is meant “by direct costs”. Does it include:
• the physical returning of the item;• The reallocation of that item;• The system administration costs incurred in reloading the item
onto the system;• the transaction fees incurred when transaction was concluded;• 3rd party banking costs, etc
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Consumer protection
• Cell C is of the view that :• items such as handsets and accessories
may be included in the list of goods ito which s45 is applicable;
• intangible goods such as prepaid voucher recharges and sim cards should be excluded from s45
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Protection of personal information
• Current law in SA does not adequately protect information privacy
• Is a barrier to development of e-commerce:
• If no confidence in protection of privacy while engaging in e-commerce transactions, some may simply not engage while others choose to give up a fundamental right in order to do do so – neither scenario is acceptable
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Protection of personal information
• Issue of information privacy magnified because of nature of electronic commerce:i.e.
• the ease with which data can be obtained, stored, manipulated and retrieved
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Universal service
• Cell is concerned that it is unclear from the provisions of the Bill how universal service will be facilitated.
• It is Cell C’s view that the Bill may create a barrier to the entry of South Africans by introducing complex and uncertain provisions in law
• Having regard to intended objectives to be achieved, attention should be focused to creating simple, effective, clear law.
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Conclusion
• Cell would like to emphasise that all the issues discussed today and recorded in its submission should be addressed with the recognition:
• of the unique nature of electronic commerce and the inherently dynamic nature of information technology
• of the need to consider international trends in respect of how they should be dealt with;
• of the need to protect the consumer and privacy;• of the need to develop effective and legitimate policy
and regulatory frameworks.
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Conclusion
Cell C would like to thank the PPCC for the opportunity to have commented on the Bill