CELL C (PTY) LIMITED’S COMMENTS ON THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS BILL, B8/2002
8 May 2002
Contents
Cell C (Pty) Ltd ("Cell C") welcomes the opportunity to comment on the Electronic Communications and Transactions Bill, B8/2002 published in Government Gazette No 23195 of 1 March 2002 ("the Bill").
It is of the view that it is imperative that South Africa should develop a law that is in harmony with international best practice so that it is not excluded from trading electronically with global partners, whilst balancing the need to pay particular attention to unique issues affecting South Africa where international frameworks would appear to lack such an emphasis.
This document outlines each Chapter of the Bill but the focus is restricted to the principle areas of the Bill that potentially affect Cell C (as a network operator and service provider) in the provision of mobile cellular telecommunication services. Comments about other selected areas are also periodically made.
The Bill is the first piece of legislation to emerge that can be directly connected to the Green Paper on E-Commerce published in November 2000 (The "Green Paper"). It is also a Bill that appears to have taken into consideration some of the Commissions comments made at the E-Commerce Law Workshop, 19th – 20th April 2001, and appears to have relied on existing legislation in other countries and organisations. The Bill also refers to an Interdepartmental Workshop held on 8 May 2001. During the E-Commerce Law Workshop, only one group ("Commission 5") presented comments suggesting what the Objects of the (E-Commerce) Act should be. These were:
Facilitation of electronic transactions and communications by the promotion of legal certainty, confidence & trust in electronic transactions. (NB this is broader than just e-commerce). The promotion of universal accessibility.
This was generally re-iterated in a draft of the Bill, but reference to "the promotion of universal accessibility" was removed from the final version. The Bill contains a number of important components that are to enable and facilitate E-commerce.
Following the Interpretation, Objects and Applications part of the Bill, the subjects addressed are as follows:
It is evident that a fair amount of international legislative benchmarking and comparisons have been considered and utilised in the Bill. In a number of instances, the Bill draws on and adopts (albeit occasionally modified) existing foreign legislation or models. The drafters of the Bill have been greatly influenced by the Model Law on Electronic Commerce developed by the UNCITRAL, Singapore’s Electronic Transactions Act, the United Kingdom’s Electronic Communications Act 2000 and European Union legislation.
Whilst the Bill contains a number of sound paragraphs, it may be insufficient for addressing electronic commerce matters alone. Ordinarily, internationally, most of the subjects are addressed through separate and more detailed pieces of legislation (e.g. electronic signatures, the theme of e-government and so forth).
The UNCITRAL Model Law on Electronic Commerce was adopted in 1996, with an additional article adopted in 1998. In July 2001, the UNCITRAL adopted a Model Law on Electronic Signatures. The Purpose of both of these model laws is to provide a system that is compatible with most national jurisdictions and they work towards a harmonised electronic commerce system for international trade. In support of the argument above, whereby further legislation will probably be required, UNCITRAL stated within the Model Law on Electronic Commerce that the Law
"…is intended to provide essential procedures and principles for facilitating the use of modern techniques for recording and communications information in various circumstances. However, it is a "framework" law that does not itself set forth all the rules and regulations that may be necessary to implement those techniques in an enacting State. Moreover, the Model Law is not intended to cover every aspect of the use of electronic commerce."
Singapore’s Electronic Transactions Act came into force on 10th July 1998. The Act recognises that there is, or prior to the Act, was a lack of compatibility between the status quo of written signatures as a stamp of personal identity and the lack of something equivalent in the intangible, electronic environment. The Act is intended to fill this void and provide for legal recognition of electronic and digital signatures, and for an overall electronic commercial-contract environment. The Act derives a major part of its legislation from the UNCITRAL Model Law on Electronic Commerce.
The United Kingdom’s Electronic Communications Act is intended to encourage the use of electronic commerce. It legislates on the supply of cryptography services and electronic signatures. Also contained within the Act is a revision of licence modifications for telecommunications operators. In the case of licence modifications, this section amends the 1984 Telecommunications Act and is meant to reflect the increase in the number of licensees since the 1984 Act. The issue of encryption proved problematic at the time because of the conflict in protecting people’s and businesses´ privacy and law enforcement. Some of the law enforcement powers concerning access to encryption keys used in monitoring electronic communications can be found in the UK’s Investigatory Powers Act passed around the same time as this Act. Electronic Signatures were addressed in order to support the validity of their use.
The European Parliament passed the European Directive on E-Commerce (2000/31/EC) which came into force on 17 January 2002. This Directive, building on existing market-harmonising Directives, is a further tool by which the development of electronic commerce is not only supported, but a single, internal European marketplace is strengthened. It requires the removal of any prohibitions or restrictions on electronic transactions (e.g. contracts). All European Union member states are to have laws that meet the requirements of the Directive, which seeks to ensure transparency of obligations for operators, commercial communications, and the conclusions and validity of electronic contracts.
Chapter II legislates that a National E-Strategy and an Electronics Transactions Policy is to be developed.
The Bill requires the Minister of Communications within 24 months to have developed a 5-year national "e-Strategy" for South Africa. It is to be declared "a national priority". The e-Strategy is to determine the role and obligations of each person, entity or sector in its implementation.
The Bill also stipulates that the Minister will develop principles and monitor the implementation of the e-Strategy. A point of significance for Cell C and others is that:
"The national e-Strategy, must, amongst others, set out [as provided for in section 5 (4)(c)] -
(vi) the role expected to be performed by the private sector in the implementation of the national e-Strategy and how Government can solicit the participation of the private sector to perform such role,
(vii) the defined objectives, including timeframes within which the objectives are to be achieved"
It is also noted that the Minister under section 6(a), in consultation with the Minister of Finance, is empowered to "procure funding from sources other than the State".
This indicates the probability of government intervention in the private sector adding further public obligations to the private sector, such as Cell C currently have to meet.
The Bill, in the formation and implementation of the e-Strategy, requires public input and consultation. Accordingly, Cell C requests an opportunity to be an active participant in these processes with the aim of maximising the relationship between Cell C’s current Social Economic Development Plan and probable requirements emerging from the e-Strategy. It is anticipated that many of the requirements will centre on universal access, human resources development (both education and business development, with a particular emphasis on supporting historically disadvantaged persons) and SMMEs.
Chapter III of the Bill is concerned with electronic transactions. The essence in this chapter is to validate electronic transactions and to make electronic contracts binding under law.
Cell C’s interests and concerns with this Chapter are shared with other providers of goods and services that form and conclude contracts electronically.
Any person conducting a transaction electronically must be confident that the transaction will be capable of final conclusion, will be enforceable afterwards and that confidentiality will not be compromised.
A transaction entered into should not need to be reinforced by additional activity in the form of traditional paper-based transactions in order to give it legal effect. A party needs to be assured that the electronic transaction, on its own, is sufficient for it to have legal effect.
The party will also need the assurance that an electronically concluded transaction will be enforceable. This would require that such transactions be recognised by our courts as creating binding rights and obligations. It further requires that the electronic evidence of the transaction should be capable of constituting sufficient proof of the transaction and its terms. Lastly, it would require certainty as to which forum or court should be approached by a party to enforce his or her rights flowing from such transaction.
Of significant importance in this regard is also the need for a user to be confident that electronic payments made or received by him/her, would in fact constitute payments that would discharge obligations created by the transaction. It may also require security of electronic delivery mechanisms.
This leads to the need to have legal certainty in respect of whether commercial transactions entered into electronically would constitute binding contracts, the issues relating to the legal status of data messages and the jurisdiction of legal systems and courts over such transactions. Without certainty on these issues, the environment would not be conducive to the development of electronic commerce.
Most law in South Africa precedes the existence or even contemplation of electronic commerce. This is so even though electronic commerce has existed for some time, albeit mostly across closed, proprietary systems. Only recently, with the explosive growth of the Internet, has electronic commerce been contemplated in our lawmaking.
Most of our law, statutory and non-statutory, was made with either a concept of commerce which did not include electronic commerce or without even contemplating the impact of electronic ways of engaging in commercial activity.
Although reviewing legislation regulating traditional paper-based commercial transactions could and should apply equally to electronic commerce, it creates an obstacle because of the language used in much of that legislation. Examples are the use of the words "document", "signature", "writing", "original", "notice", "record", and "delivery" in legislation.
By virtue of the nature of electronic messages, it is not possible in some cases to comply with such laws in electronic commerce unless the parties duplicate, confirm or simulate an earlier electronic transaction in traditional paper-based formats. In other cases compliance is uncertain because of the way existing legislation is drafted.
It is Cell C’s view that this constitutes one of the most significant barriers to the wider use of electronic commerce in South Africa.
A second, related obstacle concerns the reliance that would need to be placed on electronic messages and exchanges as proof of contracts, payment, correspondence and so forth. No enforcement of rights derived from electronic transactions can take place if electronic messages are not recognised as evidence by our courts. For example, section 14 provides that the integrity of "information [that] has been presented in its original form" is assessed by considering whether "the information has remained complete and unaltered, [with the exception] of the addition of any endorsement and any change which arises in the normal course of communication, storage and display … and having regard to all other relevant circumstances".
It would appear from this provision that there is a need to review systems and policies, which systems and policies must have the ability to show that information is complete and unaltered. In other words, there would be a need to show the origin, destination/date and time that the information was first generated in "its final form" as a data message. The concept of a data message generated "in its final form" creates uncertainty and vagueness. Some questions that arise are as follows: "When is the message in its final form; when it is sent/received/opened?"
The Computer Evidence Act requires the creator or receiver of information to record in an affidavit that the information received is unaltered. Together with the affidavit, the information would be given due evidential weight if it was to be handed as evidence in a criminal matter. Ideally, similar systems, policies and procedures must be put in place to assess the admissibility and evidential weight of data messages.
Our laws relating to admissibility of evidence and evidential value of computer related evidence is currently the subject of investigation by the South African Law Commission. It is hoped that the amendments to be made to law will address most, if not all, concerns surrounding the admissibility and evidential value of electronic evidence. In light of the development of electronic commerce however, this process should be finalised as a matter of urgency so as not to delay the evolution of electronic commerce in South Africa.
Furthermore, with regard to computer crimes, the current investigation by the South African Law Commission into the necessity for a Computer Crimes Act should be supported. Cell C advocates that certain broad guidelines, discussed under paragraph 2 above, adopted on the international arena should be considered in the adoption of such legislation.
It is a feature of electronic commerce that the networks utilised for its operation make it borderless and instantaneous. Related to this is the fact that fundamental uncertainty exists as to the time and place where electronic contracts are concluded. This uncertainty affects the question as to which country’s laws govern an electronic commerce transaction and to what extent.
The problem extends beyond the issue of the jurisdiction of civil courts. It also affects the ability of the authorities to control, monitor and regulate electronic trade.
This issue also emphasises the need for international comparison, conformity and co-operation in the process of considering any electronic commerce-specific legislation for South Africa. To put it differently, no matter how good or effective we believe our laws or envisaged electronic commerce legislation may be – it may not be effective if it does not conform to international trends. Not only will electronic commerce require conformity and co-operation with relation to electronic commerce specific laws but also co-operation and participation in international treaties to ensure the effectiveness or adequacy of domestic legislation affected indirectly by electronic commerce (e.g. banking and consumer protection laws).
The South African Reserve bank published a position paper on electronic commerce during April 1999. In the document the bank points out that emerging electronic money products may require regulatory adjustment or intervention in order to ensure that systemic and other risks to the National Payment System are limited, that consumers are adequately protected, that the Bank’s monetary policy remains effective and that criminal activity can be prevented.
Cell C supports the flexible approach adopted by the Reserve bank, but recommends that government itself should drive the issue of the proper regulatory framework. The Reserve Bank is there to protect its monetary policy and does not necessarily take into account all issues.
The Bills of Exchange Act is currently not regulating "digital cheques" while the Prevention of Counterfeiting of Currency Act is not applicable in respect of counterfeiting of electronic money. If this is correct, fundamental consumer protection and payment protection concerns arise and the need for the regulatory intervention, referred to by the Reserve bank, is highlighted.
In the South African environment, with a large proportion of the population not having access to banking facilities, electronic payment instruments such as "electronic money" and "smart cards" may become more important than in other countries. In this context, consumer protection relating to electronic payment instruments may need more emphasis than in other jurisdictions.
The approach taken is a general one, whereby potentially any form of electronic signature could be valid, ranging from the typing of a name in an e-mail to a more sophisticated or advanced signature method (e.g. digital signature).
The approach is in keeping with the use of "signature" under the UNCITRAL Model Law on Electronic Commerce, however, many countries have legislation concerned specifically with digital signatures, including for example Singapore. The Bill puts in place an accreditation authority whose task description is sufficiently broad enough to cover overseeing digital signature certification, or "advanced electronic signatures". The use of the broader term "advanced electronic signatures" (Section 13) seems to be an effort to provide for some ‘future proof’ in electronic transactions, allowing for newer types of techniques that might replace or improve on digital signatures to immediately be effective. There are a number of electronic signature possibilities ranging from e-mail, scanned manuscript signature, digital signatures, the clicking of a web button, as well as the typing of a name. The challenge for conducting electronic business, with such a range of electronic signature possibilities, will be in ensuring that the person who provides an electronic signature is indeed the person he/she is claiming to be. Even though there are methods to protect against fraud, simple electronic signatures (e.g. e-mails and scans) provide for potential risks of fraud.
Cell C’s concern with regard to electronic signatures, as addressed in the Bill is that the Bill makes general provision for an electronic signature to be appended to a data message in order to show ownership or agreement as is the case with paper-based transactions. However, the detail relating to issues that will arise around electronic signatures is not dealt with and, certainly, cannot be dealt with adequately in the Bill. Internationally, a number of jurisdictions have created separate legislation to address the issues that have arisen in accordance with electronic signatures. Cell C advocates for the creation of a separate piece of legislation to address these issues, such legislation to be drafted in line with the Model Law on Electronic Signatures adopted by UNCITRAL in July 2001.
Section 21 of the Bill provides that:
Presumably, the natural person is the party relying on the electronic agent; otherwise there would be no protection for that party. Cell C’s concern with regard to automated transactions relates to the point at which the terms and conditions of the transaction are capable of being reviewed: is it when the software is being programmed; when the customer displays the details of a purchase? The drafter’s intention is unclear in this section. The main consideration with regard to this section is that, regardless of the manner in which it is interpreted; as it is currently drafted, it is open to abuse and removes certainty as to when and how an agreement is concluded.
A second, related concern focuses on the lack of protection for providers of goods and services and parties using electronic agents to market their products. Cell C is of the view that the protection afforded to a natural person wishing to enter into a transaction with the electronic agent should be reciprocal.
Thirdly, the reference to "material benefit or value" in section 21 (e)(iv) is vague and would lead to confusion around what would actually constitute a ‘material’ benefit. Appropriate criteria should be included to resolve such uncertainty.
Chapter (IV) concerns the acceptance of electronic exchange and filing of documents, bringing into effect the validity of electronic messages and electronic signatures for matters which ordinarily require payments, permit-approval etc.
The Chapter refers to the protection of information. The protection of information and controlled use of personal information are important elements in e-commerce and in establishing trust for the general public and (potential) users of electronic communications for commerce, e-government related matters and so forth.
The Chapter is insufficient on its own for implementing E-Government services and processes, but it gives legitimacy to electronic documents in the public sector just as the Bill seeks to do for commercial contracts.
Providers of encryption technology are required to be registered with the Department of Communications, with the Director-General of Communications being tasked with the responsibility to maintain the register of cryptography providers.
This practice has been adopted by the United Kingdom (Electronic Communications Act 2000) and was controversial among organisations seeking to protect privacy and the freedom of information.
It appears that governments view controlling or managing providers of encryption technology, as a reassurance of being able to access information if needed to protect against crimes and threats to national interests. It is, however, widely argued that people and companies should also have the right to encrypt their messages to protect against uninvited third parties intercepting and reading the message, including sensitive information such as credit card numbers, accounts and other personal details.
Privacy protection groups further argue against government interception of personal details and claim these are unnecessary intrusions on liberty. These groups fear that such interception and storage of information could at some point be used against the people themselves.
Internationally, governments have been known to argue that it is necessary to intercept and be able to read messages in order to protect against organised crime, terrorism and so forth. This is an issue, however, that would have to be determined by South Africa’s citizens in light of its own political and social circumstances and history.
It is recommended that this section, in particular, be considered together with the Interception and Monitoring Bill in order to ensure that no conflict is created between the former and the latter.
To the extent that policies have not been formulated on issues such as security and authentication, and legislation has not been developed for the implementation of such policies, the development of electronic commerce in South Africa may be hindered.
There is no recognised system of authenticating a document or person. Obviously, persons engaged in electronic commerce can choose to use a number of commercial products without the need for national legislation. However, what national legislation does is to create trust in the product. Cell C is certainly not advocating that government should legislate a technology specific option. Indeed, government should create a non-technology specific and flexible system that can be used to create trust in the system as technology changes. In this regard, there are model laws developed within various international organisations. This is not only because of the importance of the issue but also because of its universal application across borders. This is one of the areas in which South Africa should find a solution compatible with international trends.
On the other side of the issue, laws concerning security and authentication should also recognise the need to detect and eliminate criminal activity. There is a balance to be struck between secure transactions and the ability to detect and stop crime. This and other issues of computer crime are being considered by the Law Commission. In addition, the Law Commission is considering the issue of security in the context of amendments to the Interception and Monitoring Prohibition Act, 1992. Cell C recommends that government consider the intended amendments set out in the Interception and Monitoring Bill together with the provisions of the Bill as they do not accord with the provisions of the Bill. The method by which data is collected and stored and the period for which it is stored should be synchronised between the two Bills, in order to create uniform databases.
In terms of section 45, a consumer is entitled to cancel without reason and without penalty any transaction and any related credit agreement for the supply –
The only charge that may be levied on the consumer is the "direct cost of returning the goods". What are the direct costs incurred in returning the goods: 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 fee’s incurred when the transaction was concluded; administrative assistance utilised to conclude the transaction and delivery of the goods; 3rd party (banking) costs? The Bill does not make provision for a definition of the term: direct costs. Would a service provider be allowed to advertise a definition of "direct costs" on its website, which definition would then be applicable in the event that goods are returned by the consumer? Clarity is sought on the drafter’s intention around the interpretation of the term "direct costs".
Whilst Cell C recognises that items such as handsets and accessories may easily be included in the list of goods in terms of which section 45 is applicable, it is of the opinion that physical vouchers such as prepaid voucher recharges and prepaid Over the Air Airtime top up, and Sim cards should be excluded from section 45.
Furthermore, section 45, makes reference to "services", however, no definition is provided as to what these services would constitute.
It is recommended that section 45(3) should be amended to make provision for a consumer to receive a refund of payment made upon cancellation of the contract; such refund to exclude the direct costs incurred by the service provider as a result of such cancellation by the consumer.
Cell C seeks clarity on the following scenario: In the event that a consumer purchases an airtime voucher, recharges his/her cell phone with the voucher, does not make any calls (thereby utlising the airtime) but does receive calls (which he/she is only able to do as a result of the recharge process based on the airtime voucher purchased) – would the ability to receive calls be perceived as the provision of a service by a mobile operator? Certainly, a voucher (once the seal has been broken) can no longer be returned and should be interpreted to be a part of "other goods intended for everyday consumption".
It should be noted that under Section 43(2) in relation to Section 45, the category, telecommunication services should be included. Although a contract for access to telecommunications can be terminated, once the minutes or seconds of telecommunications services have been used, they cannot be recovered. Section 43(f) may also benefit from the addition of "services" with the use of "goods".
Cell C recommends that existing South African Consumer protection law be considered together with the Bill to ensure that consumers are protected even in the event that the contractual transaction is conducted electronically.
Current law in South Africa does not adequately protect information privacy. This is a barrier to the development of e-commerce. If people do not have confidence that their privacy can and will be protected while engaging in electronic commerce, some of them will choose simply not to do so while others will choose to give up a fundamental right in order to engage in electronic commerce. Neither scenario is acceptable.
Although the issue of information privacy is not unique to electronic commerce, it is magnified because of the nature of electronic commerce – that is, the ease with which data can be obtained, stored, manipulated and retrieved with electronic transactions. In the further development of Open Democracy Legislation proposals, it is recommended that government ensure that the issue of information privacy is addressed in the context of the development of electronic commerce.
Chapter VIII, which deals with the protection of personal information, will affect all providers of services or goods in their acquisition, storage and use of personal information of their customers and potential customers obtained through electronic transactions ("electronic: includes created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic, optical or any similar means) e.g. online registrations, online purchases.
A noteworthy element of this provision is the ability of a data controller, under Section 51(2), to opt-out of the Protection of Personal Information principles listed under Section 52:
If a data controller decides not to voluntarily subscribe to Section 52, is it permitted to acquire personal data without the express permission of the other party, store it and use it as it so wishes (subject to any other South African privacy related law(s))? Is this the intention of the section or is there ambiguity that should be clarified?
If permission is needed through the acceptance of Section 52, then it should be stated that without voluntarily subscribing to Section 52, a data controller may not collect, store or use personal information.
Ensuring clarity in this regard would protect the providers of goods and services from potential customer-disputes.
In terms of this chapter, the Minister of Communications may pronounce that certain classes of information are to be regarded as critical data and that this information must be maintained and registered.
These classes of information are defined as "a collection of critical information in electronic form from where it may be accessed, reproduced or retracted". Critical data means "data that is declared by the Minister in terms of Section 54 to be of importance to the protection of the national security of the Republic or the economic and social well-being of its citizens".
An impact of this provision read together with certain specific provisions of the Interception and Monitoring Bill could require that operators´ call-related information be categorised as such. Accordingly, Cell C reiterates that a consideration of the various pieces of legislation referred to in this submission together with the Bill will be to the benefit of the Bill and the promulgation of proper law.
In addition to the possible prescription of technological implementation for monitoring communications, under the Bill not only is the retention of user information required, but also under Section 56 the Minister may prescribe the minimum standards for the management (including procedures and technological methods used in the storage or archiving) of critical databases (Section 56(1). The Telecommunications Act 103 of 1996, as amended does not prescribe the equipment or technology that must be used by operators in providing licensed services, but rather the service levels that operators are required to maintain. Accordingly, Cell C is of the opinion that the technological methods to be used in the storing and archiving of critical databases should not be prescribed by the Minister.
The Bill establishes a "juristic person to be known as the za domain authority" to assume responsibility over the use of the .za domain name space and operation of the domain name system. The registering of secondary domain names has been suspended as a change over in administrators is occurring (presumably to the Authority cited in this Bill).
The Authority will have the powers to administer and manage the .za domain name space, licence and regulate the registries, as well as to publicly promote public awareness on the economic and commercial benefits of domain name registration.
The Authority will be incorporated under the Companies Act 61 of 1973. The Authority will have a Board of Directors that will be determined by the Minister, with nominations from representatives of a wide spectrum of groups including academia, the disabled, non-governmental organisations, SMMEs, and the business community.
One questionable area concerns section 61(2): Should the words "…and at any time thereafter" be removed in order to permit changes in circumstances without the need to amend the legislation?
An alternative to the power being centralised within the Ministry of Communications is to have a non-governmental organisation overseeing the country-code as is the case in a number of countries (e.g. DENIC eG in Germany for its country code ".de"; AFNIC - Immeuble International oversees Frances ".fr"; Nominet UK oversees the United Kingdom’s ".uk"). However, in Australia and more recently Japan the national domain name has been handed back to government authorities. These were being managed by non-governmental organisations.
This Chapter (XI) is an important one for Internet Service providers ("ISPs"), in particular.
Service provider liability for content has been a controversial issue, particularly in determining whether or not the ISP is liable for offensive content (that which offends human dignity, enflames racism or hatred on the grounds of religion or nationality, threatens public health and security and so forth).
The approach adopted in the Bill is one that is supported, whereby, unless the ISP is involved in placing the content on the Internet as opposed to merely acting as an access connection or transmitter, the ISP will not be liable. It should be noted that if the ISP is made aware of the content (or should have known about the content being transmitted), or modifies the content then it will be liable if it does not undertake efforts to remove the material.
"Cyber – inspectors" are to be introduced and appointed by the Director General of Communications. This effectively is a policing mechanism of cryptography service providers, authentication service providers and "any web site or activity on an information system in the public domain". The investigative powers are potentially broad and risk overlapping into many other, well-established jurisdictions.
The powers of the Cyber Inspector(s) are outlined, including the right to enter, search and seize property subject to first obtaining a warrant. Such a warrant may be issued by any court and the request for and issuance of a warrant is subject to Section 25 of the Criminal Procedure Act 1977.
Many of the cyber-crimes use communications as the medium through which they are committed, rather than being unique to communications. However, with the growing use of communications infrastructures to undertake illegal activities it is not uncommon for governments to have agencies that focus on these activities being performed through the Internet and telecommunications in general. Communications in some case enhances the ability to commit crimes, including money laundering and fraud.
In other countries, national agencies have been established that are concerned with crimes committed through the use of computer and communications technology and infrastructures. These national agencies typically liase with law enforcement authorities. An agency or authority may be considered beneficial, but its location within the government and its mandate should be carefully considered to ensure its effectiveness.
With due cognisance of our Constitutional, Administrative and Criminal laws it should be considered whether: Cyber – inspectors should be within the sole domain of the Ministry of Communications. Would it be more appropriate to be under the authority of the Ministry of Justice or as a new joint Justice – Communications Agency, independent of political influence? Once again, regard must be had to the relevant provisions of the Interception and Monitoring Bill in order to ensure that there is no conflict in the processes adopted in law.
This should be a part of our Criminal law rather than communications law. Cyber crime is essentially a crime committed through the use of electronic (data-) communications, however, there are crimes that are specific to communications technology including hacking and the malicious spreading of computer viruses.
Whilst many of our existing laws may already be applicable or able to be implemented in the context of electronic commerce, Cell C is of the view that further laws are needed to support the electronic nature of the transactions or legitimise practices, as is evidenced by international jurisprudence.
In terms of priorities to changing the existing legal framework to facilitate the development of electronic commerce, Cell C recommends that the first priority should be to address the issues of extending the meaning of words such as "writing" and "signature" in a myriad of legislation to include electronic writing and signature as well as to change both civil and criminal evidential laws to recognise electronic evidence.
At the same time, South Africa, as is much of the rest of the world, should develop a policy with regard to security and privacy and should if necessary legislate for the implementation of that policy.
Other areas that will need to be addressed in the near future will be issues of payment systems, jurisdiction, intellectual property and changes to tax legislation.
Cell C would like to emphasise that all of the issues mentioned in this submission should be addressed with the recognition of the unique nature of electronic commerce, which includes its borderless and instantaneous nature and the inherently dynamic nature of information technology. It requires such things as the recognition of the need to consider international trends in how certain issues are addressed. It also requires a constant need to remember to protect the consumer in issues such as information privacy.
Finally, it requires a recognition that the government should develop effective, legitimate policies and regulatory frameworks, but that it must also facilitate the development of electronic commerce in other ways, such as using electronic commerce and encouraging its use by those who interact with government.
The amount of government involvement, namely the potential amount of intervention and centralisation of powers might be worth considering. The aim of the Government of bringing electronic communications and the economic and social benefits that can be developed has been made clear on numerous occasions including for example, in the Green Paper on E-Commerce. However, the (potential) amount of intervention, the centralisation of control and policing over various facets of electronic communications under the Director General of Communications are areas that the public and participants in the communications sector might wish to consider. It should be asked within the domestic realm if these are the best and most effective practices for South Africa or if less intervention and newer, independent agencies might be more effective and efficient towards achieving the Government’s electronic communications and commerce aims.
The Bill is important as it legislates the obligation for government policies to be developed and implemented. The Bill indicates further private sector involvement in the Government’s efforts to bring electronic communications and services accessibility to all in South Africa. Cell C recognises that electronic commerce is a substitute for paper-based commercial transactions. As such, two of its main objectives are transparency and equivalence. Government should not be seeking to introduce a "tax" to an existing mechanism that has been altered with the intention to bring the benefits of electronic commerce to all levels of society in a more efficient and speedy manner. Additionally, it is worth noting that all European Union Directives around electronic transactions also emphasise principles of equivalence, reduction in the cost of use and the ease with which the services may be used.
Finally, Cell C is concerned that it is not clear from the provisions of the Bill how it facilitates universal access and how it enables all South Africans easy entry into the electronic commerce terrain. Rather it appears to create barriers to their entry by introducing complex and uncertain provisions in law. Having regard to the objectives intended to be achieved by the promulgation of this law, Cell C believes that more attention should be focused towards creating a simple, effective, clear Bill.
Cell C would like to thank the Parliamentary Portfolio Committee on Communications for the opportunity to have commented on the Bill.