AfricaBio submission

INTRODUCTION
AfricaBio, which is also known as the Bio Technology Association, is a Section 21 Company, whose mission is to promote the safe, ethical and responsible application of Bio Technology.

Bio Technology, like all other technologies, aims to bring about improvement, and in this instance it endeavours to enhance food supply and improve health, thus alleviating some of the effects of poverty.

It must be stressed or emphasised from the onset that AfricaBio welcomes and applauds the Bill and acknowledges that this is intended to serve only as a framework. Whilst bearing the above in mind, AfricaBio is also aware that if this important regulatory tool is incorrectly interpreted, it may become burdensome and restrictive, thus our comments and suggestions.

We however wish to point out that in our oral submission we will omit those comments that have been dealt with in previous oral submissions and only dwell on those that have not been addressed or those that we are of the opinion that may need emphasis.

CHAPTER 1
As pointed out in our written submission, we are of the opinion that most of the definitions have been well thought out. We are however concerned with the definition of the word "consumer" in that it is defined as any natural person who enters or intends entering into an electronic transaction with a supplier as the end user of the goods or services offered by that supplier. It is AfricaBio’s submission that the definition is incomplete, if not prejudicial, as it implies that legal entities are always suppliers who are never end users. We therefore suggest that the word "natural" be deleted to allow for the definition to include every person whether natural or legal, alternatively the words "and/or legal" be inserted after the word "natural" and before the word "person".
"Personal information" refers to that of an individual. To some extend, though expressly referring to a natural person, the definition over laps or it could be interpreted to overlap to legal persons specially when one reads sub-clause (c) which reads "information about an identifiable individual, including but not limited to any identifying number, symbol, or other particular assigned to the individual". We therefore suggest that the word individual be defined and for purposes of protecting suppliers the words "confidential information" also be inserted and such be afforded the same protection as personal information.

CHAPTER 2
NATIONAL E-STRATEGY
Subsection 5(1) affords the Honourable Minister a period of 24 months after the promulgation of this act, within which to develop a five year national E-strategy for the whole country, which must be submitted to cabinet for approval.

Taking into consideration the amount of time it has taken to reach the current position in terms of progress and also acknowledging the importance of this legislation, AfricaBio suggests that the process be initiated as soon as possible to formulate the national E-strategy so as to reduce the 24 months period.

Subsection 6(a) provides that the minister may in consultation with the Minister of Finance procure funding from sources other than the state. AfricaBio is of the understanding that the national E-strategy is aimed at promoting Electronic Transactions and Communications. The state must avail or provide for incentives rather than making business or consumers incur extra expenses, which may come in the form of levies.

CHAPTER 4
There is a question of sovereignty of, on the one hand, the various governmental departments, and on the other hand the different provinces. This sovereignty creates uncertainty with regards to the different standards for citizens or persons who might wish to deal with the different departments or provinces. AfricaBio therefore suggests that government technology providers such as SITA be tasked with the responsibility of implementing such E-Government strategy.

CHAPTER 7
CONSUMER PROTECTION
AfricaBio acknowledges the necessity of protecting consumers as provided for in Section 45 under "cooling off period". However it should be noted that the current protection has some loop holes which may result in the protection of consumers being to the detriment of suppliers, especially SMME’s, whom the Bill aims to promote within the Electronic Transactions environment.

It is also not clear what is meant by "direct costs of returning the goods" in Section 45(2).

AfricaBio applauds Section 46 and hopes that the "opt out" provision is upheld. This is because not all South Africans, if not the majority, possess the skill of surfing the net to locate companies or suppliers which provide goods or services that they may require; or have the knowledge to subscribe to newsletters that provide discounts for these essentials. It may happen that the unsolicited communication is heaven sent but due to the "opt in" provision, the consumer would never have known about it. With the "opt out" provision it means that, if the consumer is of opinion that such communication is not relevant to them then or in the future, they simply notify the supplier who sent such communication and that becomes the end of it. Naturally once this act is promulgated, any supplier who persists to send such communication after being notified not to, will be accordingly dealt with. The emphasis has been placed on the "opt out" option, as it affords the consumer awareness, which results in greater views or options whilst the consumer is able to change his or her mind.

CHAPTER 11
LIMITATION OF LIABILITY FOR ISP’S
AfricaBio requests that clarity be provided as to whether the Minister will recognise just one representative body or more than one body that meets the Minister’s requirements. For purposes of certainty and consistency, we suggest one representative body.

We also question the worthiness of the indemnification as provided for in Section 81(1).

CHAPTER 12
POWERS OF CYBER INSPECTORS
It is not clear as to whether the powers of cyber inspectors apply to local companies only or to international companies as well within the context of cyber space as contained in Section 85. The same can be said of Section 86 with regards to inspect, search and seize.

CHAPTER 14
JURISDICTION
It is provided that a Court in the Republic … has jurisdiction where –

Section 95(a) an offence committed in the Republic.

It is not clear as to what the position would be with regards to International Suppliers. There is also the question of the meaning of the words "offence was committed in the Republic" in the context of cyber space.

AfricaBio would like to take this opportunity to thank the Chairman, as well as the Portfolio Committee on Communications for the time it was afforded to make this oral submission, especially as Bio Technology together with Electronic Technology is likely to represent future commercial live and when used synergistically can overcome mountains such as unemployment.