Consolidated working draft 27 May 2002

Clause 11
3) For purposes of subsection (2), information referred to and made available for access through a hyperlink must be regarded as validly incorporated, unless the contrary is proved.

3) 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 in which a reasonable person would have noticed the reference to and incorporation thereof; and

(b) accessible in a form in which it may be read, stored and retrieved by the other party, whether electronically or as a computer printout: Provided such information is reasonably capable of being reduced to electronic form by the party incorporating it

Narrative on amendment:
Various parties have called for the removal of this subsection (3). As pointed out, the section does create more onerous requirements for e-commerce than exist in the paper-based environment. More importantly, though, the interpretational difficulties prove to be insurmountable as it is not practical to legislate under which circumstances information would be regarded as (a) part of the "public domain" and (b) "reasonably capable of being reduced to electronic form".

The new proposed subsection (3) is required to recognise and condone the widespread use of hyperlinks on the World Wide Web. Parties are to be encouraged (through this presumption of valid incorporation) not to merely refer to the name of another document but to go the extra mile by making such document immediately available through a hyperlink. The party challenging valid incorporation is still able to do so, provided that the onus is now shifted to such challenging party to adduce evidence proving its non-availability on a balance of probabilities. This is to discourage frivolous and vexatious claims.

Writing
12. A requirement under law statute that a document or information be in

Clause 19
Other requirements in statutes
19. (1) A requirement~ under law for multiple copies of a document to be submitted to a single addressee at the same time, is satisfied by the submission of single data message that is capable of being reproduced by that addressee .

Narrative on amendment:
After due consideration, this section was moved to section 17(3) as it fits more logically with
"production of information".

(12) The following An expressions in a lawa statute, whether used as a

noun or verb, including the terms "document", "record", "file", "submit", "lodge", "deliver", "issue", "publish", "write in", "print" or expressions of similar effect must, be interpreted so as to include or permit such form, format or action in relation to a data message unless otherwise provided for in this Act.

(a) document; instrument; record
(b) file; submit; lodge; deliver
(c) issue; publish
(d) write in; write on
(e) print
(f) in the prescribed form; on the prescribed form.

Narrative on amendment:
Valid concerns have been raised in various submissions (see, amongst others, JSE and DTI submissions) on the interpretive difficulties that section 19(2) will present, It is prudent to record as many of the terms in the Act directly to avoid such difficulties. This mechanism allows for future additions to be made to the Act without upsetting the logical structure thereof.

(2) Where a seal is required by statute to be affixed to a document and such statute does not prescribe the method or form by which such document may be sealed by electronic means then that requirement is met if the document indicates that it is required to be under seal and it includes an accredited electronic siqnature of the person bv whom it is required to be sealed.

Narrative on amendment:
JSE and DTI suggested amendments based, mutates mutandis, on Irish Electronic Transactions Act

Certain other legislation not affected.
20. This Act does not limit the operation of any lawstatute that expressly authorizes, prohibits or regulates the use of data messages, including any requirement by or under alawa statute for information to be posted or displayed in a specified manner, or for any information or document to be transmitted by a specified method.

Clause 43
(g) where audio or video recordings or computer software were unsealed by the consumer;
(h) for the sale of newspapers, periodicals and magazines
(i) for the provision of gaming and lottery services; or
(j) for the provision of accommodation, transport, catering or leisure services and where the supplier undertakes, when the transaction is concluded, to provide these services on a specific date or within a specific period.
(3) Without detracting from the provisions of subsection (20, this Charter does not apply to a regulatory body or a regulated person, provided that the relevant empowering statute of that regulatory body or regulated person prescribes or is capable of prescribing consumer protection provisions in respect of electronic transactions, which further the objects expressed in this Chapter.

Narrative on amendment:
The JSE, OTI and, to some extent, the Banking Council, Life Officers Association and SA Insurance Association, have raised the following concern (the following is based on the JSE submission):

Regulators are tasked with creating specific consumer protection provisions for the industries they administer This is because each industry has different challenges and stakeholders that require a sectoral approach to consumer protection. E-commerce and communications are but one of the means of communication and transacting within a particular industry. No single law can and should create
a single standard across different industries. A regulator's authority to specifically create consumer protection rules in respect of electronic transactions should not be interfered with by legislation that applies across different spectrums of commerce. This caveat should also apply in respect of other regulated industries. -

It appears as if regulators submit that Chapter VII should be qualified to apply only to electronic transactions where such transactions or the goods and services traded are not regulated in terrns of other laws that directly or indirectly provide for or are capable of providing for consumer protection.

Information to be provided