Electronic Communications and Transactions Act

Link to law: http://www.gov.za/documents/electronic-communications-and-transactions-act
Published: 2002-08-02

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
Electronic Communications and Transactions Act [No. 25 of 2002]


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 446 Cape Town 2 August 2002 No. 23708
THE PRESIDENCY No. 1046 2 August 2002 It is hereby notified that the President has assented to the following Act, which is
hereby published for general information:– No. 25 of 2002: Electronic Communications and Transactions Act, 2002.

2 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002
~~~~~
ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
(English text signed by the President.) (Assented to 31 July 2002.)
ACT 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 transac- tions 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 therewith.
B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:- ARRANGEMENT OF SECTIONS
Sections
CHAPTER I
INTERPRETATION, OBJECTS AND APPLICATION
1. Definitions 2. Objects of Act 3. Interpretation 3. Sphere of application
CHAPTER I1
5. 6 . 7 . 8. 9.
10.
MAXIMISING BENEFITS AND POLICY FRAMEWORK
Part 1
National e-strategy
National e-strategy Universal access Previously disadvantaged persons and communities Development of human resources SMMEs
Part 2
Electronic transactions policy
Electronic transactions policy
5
10
15
20
4 No. 23705 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
CHAPTER I11
FACILITATING ELECTRONIC TRANSACTIONS
Part 1
Legal requirements for data messages
11. Legal recognition of data messages 12. Writing 13, Signature 14. Original 15, Admissibility and evidential weight of data messages 16. Retention 17. Production of document or information 18. Notarisation, acknowledgement and certification 19. Other requirements 20.
21. 22. 23. 24. 25. 26.
27. 28.
29. 30. 31. 32.
33. 34. 35. 36.
4utomated transactions
Part 2
Communication of data messages
Variation by agreement between parties Formation and validity of agreements Time and place of communications, dispatch and receipt Expression of intent or other statement Attribution of data messages to originator Acknowledgement of receipt of data message
CHAPTER IV
E-GOVERNMENT SERVICES
Acceptance of electronic filing and issuing of documents Requirements may be specified
CHAPTER V
CRYPTOGRAPHY PROVIDERS
Register of cryptography providers Registration with Department Restrictions on disclosure of information Application of Chapter and offences
CHAPTER VI
AUTHENTICATION SERVICE PROVIDERS
Part 1
Accreditation Authority
Definition Appointment of Accreditation Authority and other officers Accreditation to be voluntary Powers and duties of Accreditation Authority
5
10
15
20
25
30
35
40
. .
6 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25.2002 ELECTRONIC COMMUNICATIONS AND
37. 38. 39. 40. 41.
42. 43. 44. 45. 46. 47. 48. 49.
50. 51.
52. 53. 54. 55. 56. 57. 58.
59. 60. 61.
TRANSACTIONS ACT, 2002
Part 2
Accreditation
Accreditation of authentication products and services Criteria for accreditation Revocation or termination of accreditation Accreditation of foreign products and services Accreditation regulations
CHAPTER VI1
CONSUMER PROTECTION
Scope of application Information to be provided Cooling-off period Unsolicited goods, services or communications Performance Applicability of foreign law Non-exclusion Complaints to Consumer Affairs Committee
CHAPTER VI11
PROTECTION OF PERSONAL INFORMATION
Scope of protection of personal information Principles for electronically collecting personal information
CHAPTER IX
PROTECTION OF CRITICAL DATABASES
Scope of critical database protection Identification of critical data and critical databases Registration of critical databases Management of critical databases Restrictions on disclosure of information Right of inspection Non-compliance with Chapter
CHAPTER X
DOMAIN NAME AUTHORITY AND ADMINISTRATION
Part 1
Establishment and incorporation of .za domain name authority
Establishment of Authority Incorporation of Authority Authority’s memorandum and articles of association
Part 2
Governance and staffing of Authority
5
10
15
20
25
30
35
62. Board of directors of Authority 63. Staff of Authority
40
8 No. 23708 GOVERNMENT GAZETTE. 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND
64. 65.
66. 67.
68.
69.
70. 71. 72. 73. 74. 75. 76. 77. 78. 79.
80. 81. 82. 83. 84.
85. 86. 87. 88. 89.
TRANSACTIONS ACT, 2002
Part 3
Functions of Authority
Licensing of registrars and registries Functions of Authority
Part 4
Finances and reporting
Finances of Authority Reports
Part 5
Regulations
Regulations regarding Authority
Part 6
Alternative dispute resolution
Alternative dispute resolution
CHAPTER XI
LIMITATION OF LIABILITY OF SERVICE PROVIDERS
Definition Recognition of representative body Conditions for eligibility Mere conduit Caching Hosting Information location tools Take-down notification No general obligation to monitor Savings
CHAPTER XI1
CYBER INSPECTORS
Appointment of cyber inspectors Powers of cyber inspectors Power to inspect. search and seize Obtaining warrant Preservation of confidentiality
CHAPTER XI11
CYBER CRIME
Definition Unauthorised access to, interception of or interference with data Computer-related extortion, fraud and forgery Attempt, and aiding and abetting Penalties
5
10
15
20
25
30
35
40
10 No. 23708 GOVERNMENT GAZE‘ITE, 2 UGUST 2002
Act No. 25, 2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
CHAPTER XIV
GENERAL PROVISIONS
90. Jurisdiction of courts 91. Saving of common law 92. Repeal of Act 57 of 1983 93. Limitation of liability 94. Regulations 95. Short itle and commencement
SCHEDULE 1
SCHEDULE 2
CHAPTER I
INTERPRETATION, OBJECTS AND APPLICATION
Definitions
1. In this Act, unless the context indicates ctherwise- “addressee”, in respect of a data message, means a person who is intended by the originator to receive the data message, but not a person acting as an intermediary in respect of that data message; “advanced electronic signature” means an electronic signature which results from a process which has been accredited by the Authority as provided for in section 37; “authentication products or services” means products or services designed to identify the holder of an electronic signature to other persons; “authentication service provider” means a person whose authentication products or services have been accredited by the Accreditation Authority under section 37 or recognised under section 40; “Authority” means the .za Domain Name Authority; “automated transaction” means an electronic transaction conducted or performed, in whole or in part, by means of data messages in which the conduct or data messages of one or both parties are not reviewed by a natural person in the ordinary course of such natural person’s business or employment; “browser” means a computer program which allows a person to read hyperlinked data messages; “cache” means high speed memory that stores data for relatively short periods of time, under computer control, in order to speed up data transmission or processing; “ccTLD” means country code domain at the top level of the Internet’s domain name system assigned according to the two-letter codes in the International Standard I S 0 3 166- 1 (Codes for Representation of Names of Countries and their Subdivision); “certification service provider” means a person providing an authentication product or service in the form of a digital certificate attached to, incorporated in or logically associated with a data message; “consumer” means 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: “Consumer Affairs Committee” means the Consumer Affairs Committee estab- lished by section 2 of the Consumer Affairs (Unfair Business Practices) Act, 1988 (Act No. 71 of 1988); “critical data” means data that is declared by the Minister in terms of section 53 to be of importance to the protection of the national security of the Republic or the economic and social well-being of its citizens; “critical database” means a collection of critical data in electronic form from where it may be accessed, reproduced or extracted; “critical database administrator” means the person responsible for the manage- ment and control of a critical database;
5
10
15
20
25
30
35
40
45
50
12 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT. 2002
“cryptography product” means any product that makes use of cryptographic techniques and is used by a sender or recipient of data messages for the purposes of ensuring- (a) that such data can be accessed only by relevant persons; (6) the authenticity of the data; (c) the integrity of the data; or (d) that the source of the data can be correctly ascertained; “cryptography provider” means any person who provides or who proposes to provide cryptography services or products in the Republic; “Cryptography service” means any service which is provided to a sender or a recipient of a data message or to anyone storing a data message, and which is designed to facilitate the use of cryptographic techniques for the purpose of ensuring- (u) that such data or data message can be accessed or can be put into an
(6) that the authenticity or integrity of such data or data message is capable of
(c) the integrity of the data or data message; or (d) that the source of the data or data message can be correctly ascertained; “cyber inspector” means an inspector referred to in Chapter XII; “data” means electronic representations of information in any form; “data controller” means any person who electronically requests, collects, collates, processes or stores personal information from or in respect of a data subject; “data message” means data generated, sent, received or stored by electronic means and includes- (a) voice, where the voice is used in an automated transaction; and (b) a stored record; “data subject” means any natural person from or in respect of whom personal information has been requested, collected, collated, processed or stored, after the commencement of this Act: “Department” means the Department of Communications; “Director-General’’ means the Director-General of the Department; “domain name” means an aiphanumeric designation that is registered or assigned in respect of an electronic address or other resource on the Internet; “domain name system” means a system to translate domain names into IP addresses or other information; “e-government services” means any public service provided by electronic means by any public body in the Republic: “electronic agent” means a computer program or an electronic or other automated means used independently to initiate an action or respond to data messages or performances in whole or in part, in an automated transaction; “electronic communication” means a communication by means of data messages; “electronic signature” means data attached to, incorporated in. or logically associated with other data and which is intended by the user to serve as a signature; “e-mail” means electronic mail, a data message used or intended to be used as a mail message between the originator and addressee in an electronic communica- tion; “home page” means the primary entry point web page of a web site; “hyperlink” means a reference or link from some point in one data message directing a browser or other technology or functionality to another data message or point therein or to another place in the same data message; “ICANN” means the Internet Corporation for Assigned Names and Numbers, a California non-profit public benefit corporation established in terms of the laws of the state of California in the United States of America; “information system” means a system for generating. sending, receiving, storing, displaying or otherwise processing data messages and includes the Internet; “information system services” includes the provision of connections, the operation of facilities for information systems, the provision of access to information systems, the transmission or routing of data messages between or among points specified by a user and the processing and storage of data, at the individual request of the recipient of the service;
intelligible form only by certain persons;
being ascertained;
5
10
15
20
25
30
35
40
45
50
55
60
14 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT. 2002
“intemlediary” means a person who, on behalf of another person, whether as agent or not, sends, receives or stores a particular data message or provides other services with respect to that data message; “Internet” means the interconnected system of networks that connects computers around the world using the TCPAP and includes future versions thereof; 5 “IP address” means the number identifying the point of connection of a computer or other device to the Internet; “Minister” means the Minister of Communications; “originator” means a person by whom, or on whose behalf, a data message purports to have been sent or generated prior to storage, if any, but does not include 10 a person acting as an intermediary with respect to that data message; “person” includes a public body; “personal information” means information about an identifiable individual, including, but not limited t o - -
information relating to the race, gender, sex, pregnancy, marital status, 15 national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture. language and birth of the individual; information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in 20 which the individual has been involved; any identifying number, symbol, or other particular assigned to the individual; the address. fingerprints or blood type of the individual; the personal opinions, views or preferences of the individual, except where they are about another individual or about a proposal for a grant, an award or 25 a prize to be made to another individual; correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; the views or opinions of another individual bout the individual; 30 the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and the name of the individual where it appears with other personal information 35 relating to the individual or where the disclosure of the name itself would reveal information about the individual,
but excludes information about an individual who has been dead for more than 20 years; “prescribe” means prescribe by regulation under this Act; 40 “private body” means- (a) a natural person who cames or has carried on any trade, business or
(b ) a partnership which carries or has carried on any trade, business or profession;
(c) any former or existing juristic person, but not a public body: “public body” means- (a) any department of state or administration in the national or provincial sphere
(b) any other functionary or institution when-
a provincial constitution; or
profession. but only in such capacity;
or 45
of government or any municipality in the local sphere of government; or 50
(i) exercising a power or performing a duty in terms of the Constitution or
(ii) exercising a power or performing a function in terms of any legislation; “registrant” means an applicant for or holder of a domain name; 55 “registrar” means an entity which is licensed by the Authority to update a repository;
16 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
“registry” means an entity licensed by the Authority to manage and administer a specific subdomain; “repository” means the primary register of the information maintained by a registry; “second level domain” means the subdomain immediately following the ccTLD; 5 “SMMEs” means Small, Medium and Micro Enterprises contemplated in the Schedules to the Small Business Development Act, 1996 (Act No. 102 of 1996); “subdomain” means any subdivision of the .za domain name space which begins at the second level domain; “TCP/IP” means the Transmission Control Protocol Internet Protocol used by an 10 information system to connect to the Internet; “TLD” means a top level domain of the domain name system; “third party”, in relation to a service provider, means a subscriber to the service provider’s services or any other user of the service provider’s services or a user of information systems; 15 “transaction” means a transaction of either a commercial or non-commercial nature, and includes the provision of information and e-government services; “universal access” means access by all citizens of the Republic to Internet connectivity and electronic transactions; “WAP” means Wireless Application Protocol, an open international standard 20 developed by the Wireless Application Protocol Forum Limited, a company incorporated in terms of the laws of the United Kingdom, for applications that use wireless communication and includes Internet access from a mobile phone; “web page” means a data message on the World Wide Web; “web site” means any location on the Internet containing a home page or web 25 page; “World Wide Web” means an information browsing framework that allows a user to locate and access information stored on a remote computer and to follow references from one computer to related information on another computer; and “.za domain name space” means the .za ccTLD assigned to the Republic according 30 to the two-letter codes in the International Standard I S 0 3166-1.
Objects of Act
2. (1) The objects of this Act are to enable and facilitate electronic communications and transactions in the public interest, and for that purpose to-
recognise the-importance of the information-economy for the economic and 35 social prosperity of the Republic; promote universal access primarily in underserviced areas; promote the undcrstanding and, acceptance of and growth in the number of electronic transactions in the Republic; remove and prevent barriers to electronic communications and transactions in 40 the Republic; promote legal certainty and confidence in respect of electronic communica- tions and transactions; promote technology neutrality in the application of legislation to electronic communications and transactions; 45 promote e-government services and electronic communications and transac- tions with public and private bodies, institutions and citizens; ensure that electronic transactions in the Republic conform to the highest international standards: encourage investment and innovation in respect of electronic transactions in 50 the Republic; develop a safe, secure and effective environment for the consumer. business and the Government to conduct and use electronic transactions; promote the development of electronic transactions services which are responsive to the needs of users and consumers; 55 ensure that, in relation to the provision of electronic transactions services, the special needs of particular communities and, areas and the disabled are duly taken into account;
18 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
(m) ensure compliance with accepted International technical standards in the
(n ) promote the stability of electronic transactions in the Republic; ( 0 ) promote the development of human resources in the electronic transactions
( p ) promote SMMEs within the electronic transactions environment; (q) ensure efficient use and management of the .za domain name space; and ( r ) ensure that the national interest of the Republic is not compromised through
provision and development of electronic communications and transactions;
environment; 5
the use of electronic communications.
Interpretation 10
3. This Act must not be interpreted so as to exclude any statutory law or the common law from being applied to, recognising or accommodating electronic transactions, data messages or any other matter provided for in this Act.
Sphere of application
4. (1) Subject to any contrary provision in this section, this Act applies in respect of 15 any electronic transaction or data message.
(2) This Act must not be construed as- (a) requiring any person to generate, communicate, produce, process, send,
receive, record, retain, store or display any information, document or signature by or in electronic form; or 20
(b) prohibiting a person from establishing requirements in respect of the manner in which that person will accept data messages.
(3) The sections of this Act mentioned in Column B of Schedule 1 do not apply to the laws mentioned in Column A of that Schedule.
(4) This Act must not be construed as giving validity to any transaction mentioned in 25 Schedule 2.
(5) This Act does not limit the operation of any law that expressly authorises, prohibits or regulates the use of data messages, including any requirement by or under a law for information to be posted or displayed in a specified manner, or for any information or document to be transmitted by a specified method. 30
CHAPTER I1
MAXIMISING BENEFITS AND POLICY FRAMEWORK
Part 1
Kational e-strategy
National e-strategy 35
5. (1) The Minister must, within 24 months after the promulgation of this Act, develop a three-year national e-strategy for the Republic, which must be submitted to the Cabinet for approval.
(2) The Cabinet must, on acceptance of the national e-strategy, declare the implementation of the national e-strategy as a national priority. 40
(3) The Minister, in developing the national e-strategy as envisaged in subsection (1)-
(a) must determine all matters involving e-government services in consultation
(b) must determine the roles of each person, entity or sector in the implementation 45
(c) must act as the responsible Minister for eo-ordinating and monitoring the
(d) may make such investigations as he or she may consider necessary;
with the Minister for the Public Service and Administration;
of the national e-strategy;
implementation of the national e-strategy;
20 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 002
i i c t No. 25, 2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
may conduct research into and keep abreast of developments relevant to electronic communications and transactions in the Republic and internation- ally; must continually survey and evaluate the extent to which the objectives ofthe national e-strategy have been achieved; 5 may liaise, consult and cooperate with public bodies, the private sector or any other person; and may, in consultation with the Minister of Finance, appoint experts and other consultants on such conditions as the Minister may determine.
(4) (a) The Minister must, in consultation with other members of the Cabinet, 10 determine the subject matters to be addressed in the national e-strategy and the principles that must govern the implementation thereof.
(b) Prior to prescribing any subject matter and principles provided for in paragraph (a), the Minister must invite comments from all'interested parties by notice in the Gazette and consider any comments received. 15
(c) The national e-strategy must, amongst others, set out- the electronic transactions strategy of the Republic, distinguishing between regional, national, continental and international strategies; programmes and means to achieve universal access, human resource development and development of SMMEs as provided for in this Part; - 20 programmes and means to promote the overall readiness of the Republic in respect of electronic transactions; ways to promote the Republic as a preferred provider and user of electronic transactions in the international market; existing government initiatives directly or indirectly relevant to or impacting 25 on the national e-strategy and, if applicable, how such initiatives are to be utilised in attaining the objectives of the national e-strategy; 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; 30 the defined objectives, including time frames within which the objectives are to be achieved; and the resources required to achieve the objectives provided for in the national e-strategy.
(5) Upon approval by the Cabinet, the Minister must publish the national e-strategy in 35
(6) For purposes of achieving the objectives of the national e-strategy, the Minister the Gazette.
may, in consultation with the Minister of Finance- (a) procure funding from sources other than the State; (6) allocate funds for implementation of the national e-strategy to such 40
institutions and persons as are responsible for delivery in terms of the national e-strategy and supervise the execution of their mandate; and
(c) take any steps necessary to enable all relevant parties to carry out their respective obligations.
(7) The Minister must annually report to the Cabinet on progress made and objectives 45 achieved or outstanding and may include any other matter the Minister deems relevant.
(8) The Minister must annually review the national e-strategy and where necessary make amendments thereto in consultation with all relevant members of the Cabinet.
(9) No amendment or adaptation of the national e-strategy is effective unless approved by the Cabinet. 50
(10) The Minister must publish any material revision of the national e-strategy in the Gazette.
( I 1) The Minister must table an annual report in Parliament regarding the progress made in the implementation of the national e-strategy.
Universal access 55
6. In respect of universal access, the national e-strategy must outline strategies and programmes to-
22 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS A D TRANSACTIONS ACT, 2002
(a) provide Internet connectivity to disadvantaged communities; (b ) encourage the private sector to initiate schemes to provide universal access; (c) foster the adoption and use of new technologies for attaining universal access;
(d) stimulate public awareness, understanding and acceptance of the benefits of 5 and
Internet connectivity and electronic transacting.
Previously disadvantaged persons and communities
7. The Minister, in developing the national e-strategy, must provide for ways of maximising the benefits of electronic transactions to historically disadvantaged persons and communities, including, but not limited to-
(a) making facilities and infrastructure available or accessible to such persons and communities to enable the marketing and sale of their goods or services by way of electronic transactions;
(6) providing or securing support services for such facilities and infrastructure to assist with t e efficient execution of electronic transactions; and 15
(c) rendering assistance and advice to such persons and communities on ways to adopt and utilise electronic transactions efficiently.
10
Development of human resources
8. (1) The Minister, in developing the national e-strategy, must provide for ways of promoting development of human resources set out in this section within the context of 20 the government’s integrated human resource development strategies, having regard to structures and programmes that have been established under existing laws.
(2) The Minister must consult with the Ministers of Labour and Education on existing facilities, programmes and structures for education, training and human resource development in the information technology sector relevant to the objects of this Act. 25
(3) Subject to subsections (1) and (2), the Minister must promote skills development in the areas of-
information technology products and services in support of electronic transactions; business strategies for SMMEs and other businesses to utilise electronic 30 transactions; sectoral, regional, national, continental and international policy formulation for electronic transactions; project management on public and private sector implementation of electronic transactions; 35 the management of the .za domain name space; the management of the IP address system for the African continent in consultation with other African states; convergence between communication technologies affecting electronic trans- actions; 40 technology and business standards for electronic transactions; education on the nature, scope, impact, operation, use and benefits of electronic transactions; and any other matter relevant to electronic transactions.
SMMEs 45
9. The Minister must, in consultation with the Minister of Trade and Industry, evaluate the adequacy of any existing processes, programmes and infrastructure providing for the utilisation by SMMEs of electronic transactions and, pursuant to such evaluation, may-
(a) establish or facilitate the establishment of electronic communication centres 50 for SMMEs;
24 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS A D ~~ ~ ~-
TRANSACTIONS ACT, 2002
(6) facilitate the development of web sites or web site portals that will enable SMMEs to transact electronically and obtain information about markets, products and technical assistance; and
(c) facilitate the provision of such professional and expert assistance and advice to SMMEs on ways to utilise electronic transacting efficiently for their 5 development.
Part 2
Electronic transactions policy
Electronic transactions policy
10. (1) The Minister must, subject to this Act, formulate electronic transactions policy. 10 (2) In formulating the policy contemplated in subsection (l), the Minister must-
(a) act in consultation with members'of the Cabinet directly affected by such
(b) have due regard to- policy formulation or the consequences thereof;
(i) the objects of this Act; 15 (ii) the nature, scope and impact of electronic transactions;
(iii) international best practice and conformity with the law and guidelines of other jurisdictions and international bodies; and
(iv) existing laws and their administration in the Republic. (3) The Minister must publish policy guidelines in the Gazette on issues relevant to 20
(4) In implementing this Chapter, the Minister must encourage the development of electronic transactions in the Republic.
innovative information systems and the growth of related industry.
CHAPTER I11
FACILITATING ELECTRONIC TRANSACTIONS 25
Part 1
Legal requirements for data messages
Legal recognition of data messages
11. (1) Information is not without legal force and effect merely on the grounds that it is wholly or partlyin the form of a data mess ge. 30
(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.
(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- 35
( a ) referred to in a way in which a reasonable person would have noticed the reference thereto 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 as, long as such information is reasonably capable of being reduced to electronic form by the 40 party incorporating it.
Writing
12. A requirement in law that a document or information must be in writing is met if the document or information is-
(a) in the form of a data m ssage; and 45 (b) accessible in a manner usable for subsequent reference.
26 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
Signature
13. (1) Where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used.
(2) Subject to subsection ( I ) . an electronic signature is not without legal force and 5 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 to indicate the person’s approval 10 of the information communicated: and
(6) having regard to all the 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 15 as being a valid electronic signature and to have been applied properly, unless the contrary is proved.
( 5 ) Where an electronic signature is not required by the parties to an electronic transaction, an expression of intent or other statement is not without legal force and effect merely on the grounds that- 20
(a) it is in the form of a data message; or (b) it is not evidenced by an electronic signature but is evidenced by other means
from which such person’s intent or other statement can be inferred.
Original
14. ( 1 ) Where a law requires infornlation to be presented or retained in its original 25 form, that requirement is met by a data message if-
(a) the integrity of the information from the time when it was first generated in its final form as a data message or otherwise has passed assessment in terms of subsection (2); and
(h ) that information is capable of being displayed or produced to the person to 30 whom it is to be presented.
(2) For the purposes of subsection I(a), the integrity must be assessed- (a) by considering whether the information has remained complete and unaltered.
except for the addition of any endorsement and any change which arises in the normal course of communication, storage and display: 35
(0) in the !ight of the purpose for which the information was generated; and (c) having regard to all other relevant circumstances.
Admissibility and evidential weight of data messages
15. (1) In any legal proceedings. the rules of evidence must not be applied so as to deny the admissibility of a data message. in evidence- 40
( a ) on the mere grounds that it is constituted by a data message; or (0) if it is the best evidence that the person adducing it could reasonably be
expected to obtain, on the grounds that it is not in its original form. ( 2 ) Information in the form of a data message must be given due evidential weight. (3) In assessing the evidential weight of a data message, regard must be had to- 45
(a ) the reliability of the manner in which the data message was generated, stored
( b ) the reliability of the manner in which the integrity of the data message was
(c) the manner in which its originator was identified; and 50 (d) any other relevant factor.
or communicated;
maintained:
78 No. 23708 GOVERNMENT GAZETTE. 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
(4) A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self regulatory organisation or any other law or the common law. admissible in evidence against any person and 5 rebuttable proof of the facts contained in such record, copy, printout or extract.
Retention
16. ( 1 ) Where a law requires information to be retained, that requirement is met by retaining such information in the form of a data message. if-
(0) the information contained in the data message is accessible so as to be usable 10 for subsequent reference:
( h ) the data message is in the format in which it was generated. sent or received, or in a format which can be demonstrated to represent accurately the information generated, sent or received; and
(L.) the origin and destination of that data message and the date and time it was 15 sent or received can be determined.
( 2 ) The obligation to retain information as contemplated in subsection ( 1 ) does not extend to any information the sole purpose of which is to enable the message to be sent or received.
Production of' document or information 20
17. ( 1 ) Subject to section 28. where a law requires a person to produce a document or information, that requirement is met if the person produces, by means of a data message, an electronic form of that document or information. and if-
( ( I ) considering all the relevant circumstances at the time that the data message was sent. the method of generating the electronic form of that document 25 provided a reliable means of assuring the maintenance of the integrity of the information contained in that document: and
( h i at the time the data message was sent, i t was reasonable to expect that the information contained therein would be readily accessible so as to be usable for subsequent reference. 30
( 3 ) For the purposes of subsection ( I ) , the integrity of the information contained in a document is maintained if the information has remained complete and unaltered, except for-
( N J the addition of any endorsement: or ( h ) any immaterial change, which arises in the normal course of communication, 35
storage or display.
Notarisation, acknowledgement and certification
18. ( 1 ) Where a law requires a signature. statement or document to be notarised, acknow,ledged. ierified or made under oath. that requirement is met if the advanced electronic signature of the person authorised to perform those acts is attached to, 40 incorporated in or logically associated with the electronic signature or data message.
( 3 ) Where a l a w requires or permits a person to provide a certified copy of a document and the document exists in electronic form, that requirement is met if the person provides a print-out certified to be a true reproduction of the document or information.
and the document exists in paper or other physical form, that requirement is met if an electronic copy of the document is certified to be a true copy thereof and the certification is confirmed by the use of an advanced electronic signature.
(3) Where a law requires or permits a person to provide a certified copy of a document 45
30 No. 23708 GOVERNMENT G A Z E T E , 2 AUGUST 2002
Act No. 252002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
Other requirements
19. (1) A requirement in a law for multiple copies of a document to be submitted to a single addressee at the same time, is satisfied by the submission of a single data message that is capable of being reproduced by that addressee.
“document”, “record”, “file”. “submit”, “lodge”, “deliver”, “issue”, “publish”, “write in”, “print” or words 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.
prescribe the method or fonn by which such document may be sealed by electronic means, that requirement is met if the document indicates that i t is required to be under seal and i t includes the advanced electronic signature of the person by whom it is required to be sealed.
rezistered or certified post or similar service. that requirement is met if an electronic copy of the document or information is ent to the South African Post Office Limited, is registered by the said Post Office and sent by that Post Office to the electronic address provided by the sender.
(2) An expression in a ha.. whether used as a noun or verb, including the terms 5
(3) Where a seal is required by law to be affixed to a document and such law does not 10
(3) Where any law requires or permits a person to send a document or information by 15
Automated transactions 20
30. In an automated transaction- an agreement may bc formed where an electronic agent performs an action required by law for agreement formation: an qreement may be formed where all parties to a transaction or either one of them uses an electronic agent; 25 a part)’ usin: an electronic agent to fonu an agreement is, subject to paragraph i d ) . presumed to be bound by the terms of that agreement irrespective of whether that person reviewed the actions of the electronic agent or the terms of the as Greenlent: A party interacting u~ith an electronic agent to form an agreement is not bound 30 by the terms of the agreement unless those terms were capable of being revie\ved by a catural person representing that party prior to agreement formation. no agreement is formed where a natural person interacts directljr with the electronic agent of another person and has made a material error during the 35 creation of a data message and- (i) the electronic agent did not prolride that person with an opportunit!, to
prevent 0:‘ conect the error: ( i i ) that person notifies the other person of the error as soon as practicable
after that person has learned of it: 40 ( i i i ) l h a ~ person takes reasonable steps. including steps that conform to the
othel- person‘s instructions to return an!’ performance recei\!ed. or. if instl-ucted to do so. to destro! that perfbrmance: and
( i \ ) that ptrson has not used or recei\.ed any material benefit or value from an)’ performance received from the other person. 15
Part 2
Communication of data messages
Variation by agreement between parties
21. This Part 0111)~ applies if the parties involved in generating. sending. receiving, storin: or otherwise processing data messages have not reached agreement on the issues 50 proiided for therein.
32 No. 23708 GOVERNMENT GAZETTE. 2 AUGUST 2002 ~
.Act No. 25. 2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
Formation and validity of agreements
22. ( I ) An agreement is not without legal force and effect merely because it was
(2) An agreement concluded between parties by means of data messages is concluded concluded partly or in whole by means of data messages.
at the time when and place where the acceptance of the offer was received by the offeror. 5
Time and place of communications, dispatch and receipt
23. 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:
(0) 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
I C ) must be regarded as having been sent from the originator's usual place of business or residence and as having been received at the addressee's usual place of business or residence.
Expression of intent or other s atement 20
2% As between the originator and the addressee of a data message an expression of intent or other statement is not without legal force and effect merely on the grounds thLlt-
( n ) it is in the form of a data message: or ( 0 ) i t is not e\idenced by an electronic signature but by other means from which 25
such person's intent or other statement can be inferred.
Attribution of data messages to originator
25. A data message is that of the originator if it was sent by- ( ( 1 j the originator personally; ( 0 ) a person who had authority to act on behalf ofthe originator in respect of that 30
data message: or ( c ) an information system programmed by or on behalf of the originator to
operate automatically unless it is proved that the information system did not properly execute such programming.
Acknowledgement of receipt of data message 35
16. ( I ) An acknowledgement of receipt of a data message is not necessary to give
(21 An ackno\tledgement of receipt may be given by- legal effect to that message.
( ( 1 1 any communication by the addressee, whether automated or otherwise: or ( h ) any conduct of the addressee, sufficient to indicate to the originator that the 40
data message has been received.
CHAPTER IV
E-GOVERNMENT SERVICES
Acceptance of electronic filing and issuing of documents
27. Any public body that. pursuant to any law- 45 (a ) accepts the filing of documents, or requires that documents be created or
retained:
34 No. 23708 GOVERNMENT GAZETTE, 2 AUGUS 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
(0) issues any permit, licence or approval; or (c) provides for a manner of payment,
(i) accept the filing of such documents, or the creation or retention of such
(ii) issue such permit, licence or approval in the form of a data message; or (iii) make or receive payment in electronic form or by electronic means.
may, notwithstanding anything to the contrary in such law-
documents in the form of data messages; 5
Requirements may be specified
28. (1) In any case where a public body performs any of the functions referred to in section 27, such body may specify by notice in the Gazette- 10
(ai the manner and format in which the data messages must be filed, created, retained or issued;
( h ) in cases where the data message has to be signed, the type of electronic signature required;
(c) the manner and format in which such electronic signature must be attached to. 15 incorporated in or otherwise associated with the data message;
(d) the identity of or criteria that must be met by any authentication service provider used by the person filing the data message or that such authentication service provider must be a preferred authentication service provider;
( e ) the appropriate control processes and procedures to ensure adequate integrity, 20 security and confidentiality of data messages or payments; and
(S, any other requirements for data messages or payments. (2) For the purposes of subsection ( I ) ( d ) the South African Post Office Limited is a
preferred authentication service provider and the Minister may designate any other authentication service provider as a preferred authentication service provider based on 25 such authentication service provider's obligations in respect of the provision of universal access.
CHAPTER V
CRYPTOGRAPHY PROVIDERS
Register of cryptography providers 30
29. (1) The Director-General must establish and maintain a register of cryptography
( 2 ) The Director-General must record the following particulars in respect of a providers.
cryptography provider in that register: (a ) The name and address of the cryptography provider; 35 (0) a description of the type of cryptography service or cryptography product
ic) such orher particulars as may be prescribed to identify and locate the being provided; and
cryptography provider or its products or services adequately. (3) A cryptography provider is not required to disclose confidential information or 40
trade secrets in respect of its cryptography products or services.
Registration with Department
30. (1) No person may provide cryptography services or cryptography products in the Republic until the particulars referred to in section 29 in respect of that person have been recorded in the register contemplated in section 29. 45
( 2 ) A cryptography provider must in the prescribed manner furnish the Director- General with the information required and pay the prescribed administrative fee.
(3) A cryptography service or cryptography product is regarded as being provided in the Republic if it is provided-
36 No. 23708 GOVERNMENT GAZETTE. 2 AUGUST 2002 -
~~~~~~~~
.Ict So. 25. 2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT. 2002
( a ) from premises in the Republic; (0) to a person who is present in the Republic when that person makes use of the
( c i to a person who uses the service or product for the purposes of a business service or product: or
carried on in the R public or from premises in the R public. 5
Restrictions on disclosure of information
31. ( I ) Information contained in the register provided for in section 29 must not be disclosed to any person other than to employees of the Department who are responsible for the keeping of the register.
( 3 ) Subsection ( 1 ) does not apply in respect of information which is disclosed- 10 ( a ) to a relevant authority which investigates a criminal offence or for the
(0) to government agencies responsible for safety and security in the Republic,
(c) to a cyber inspector: 15 ( (1 ) pursuant to section 11 or 30 of the Promotion of Access to Information Act.
(Act No. 2 of 2000): or ( e ) for the purposes of any civil proceedings which relate to the provision of
cryptography services or cryptography products and to which a cryptography provider is a party. 20
purposes of any criminal proceedings;
pursuant to an official request:
Application of Chapter and offences
32. ( I ) The provisions of this Chapter do not apply to the National Intelligence Agent!. established in terms of section 3 of the Intelligence Services Act. 1994 (Act No. 38 of 1994).
guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.
( 3 ) A person uho contravenes or fails to comply with a provision of this Chapter is 35
CHAPTER VI
AUTHENTICATION SERVICE PROVIDERS
Part 1 30
Accreditation Authority
Definition
33. In this Chapter. unless the context indicates otherwise- "accreditation" means recognition of an authentication product or service by the Accreditation Authority. 35
Appointment of kcreditation Authority and other officers
31. ( I ) For the purposes of this Chapter the Director-General must act as the
( 2 ) The Accreditation Authority. after consultation with the Minister. may appoint Accreditation Authority.
employees of the Department as Deputy Accreditation Authorities and officers. 40
Accreditation to he voluntary
35. Subject to section 30. a person may, without the prior authority of any other person. sell or provide authentication products or services in the Republic.
Powers and duties of Accreditation Authority
36. ( 1 ) The Accreditation Authority may- 4.5
38 No. 33708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2003-
( a ) monitor the conduct, systems and operations of an authentication service provider to ensure its compliance with section 38 and the other obligations of authentication service providers in terms of this Act;
(b) temporarily suspend or revoke the accreditation of an authentication product or service; and 5
(c) appoint an independent auditing firm to conduct periodic audits of the authentication service provider to ensure its compliance with section 38 and the other obligations of authentication service providers in terms of this Act.
(2) The Accreditation Authority must maintain a publicly accessible database in respect of- 10
(a ) authentication products or services accredited in terms of section 37; (b) authentication products and services recognised in terms of section 40; ( c ) revoked accreditations or recognitions; and (d) such other information as may be prescribed.
Part 2 15
Accreditation
Accreditation of authentication products and services
37. ( 1 ) The Accreditation Authority may accredit authentication products and services
( 2 ) An application for accreditation must- 20 in support of advanced electronic signatures.
( a ) be made to the Accreditation Authority in the prescribed manner supported by
( 0 ) be accompanied by a non-refundable prescribed fee. the prescribed information; and
(3) A person falsely holding out its products or services to be accredited by the Accreditation Authority is guilty of an offence. 25
Criteria for accreditation
38. ( 1 ) The Accreditation Authority may not accredit authentication products or services unless the Accreditation Authority is satisfied that an electronic signature to which such authentication products or services relate-
( a ) is uniquely linked to the user; 30 (0) is capable of identifying that user; (c ) is created using means that can be maintained under the sole control of that
(d ) will be linked to the data or data message to which it relates in such a manner
(e ) is based on the face-to-face identification of the user.
user: and
that any subsequent change of the data or data messaze is detectable; 35
12) For purposes of subsection (1). the Accreditation Authority must have regard to the following factors in respect of an authentication service provider prior to accrediting authentication products or services:
( a ) Its financial and human resources, including its assets; 40 (17) the quality of its hardware and software systems: (c) its procedures for processing of products or services: ( t l ) the availability of information to third parties relying on the authentication
(c) the regularity and extent of audits by an independent body; 45 If) the factors referred to in subsection (4) where the products and services are
(g) any other relevant factor which may be prescribed.
product or service;
rendered by a certification servjce provider; and
(3) For the purposes of subsections (2)(b) and (c), the hardware and software systems and procedures must at least- 50
( a ) be reasonably secure from intrusion and misuse; (0) provide a reasonable level of availability, reliability and correct operation;
40 No. 23708 GOVERNMENT GAZETIE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
(c) be reasonably suited to performing their intended functions; and (d ) adhere to generally accepted security procedures.
(4) For the purposes of subsection (l), where the products or services are provided by a certification service provider, the Accreditation Authority may stipulate, prior to accrediting authentication products or services- 5
(a) the technical and other requirements which certificates must meet; (b) the requirements for issuing certificates; (c) the requirements for certification practice statements; (d ) the responsibilities of the certification service provider; ( e ) the liability of the certification service provider; If) the records to be kept and the manner in which and length of time for which
(g) requirements as to adequate certificate suspension and revocation procedures;
( h ) requirements as to adequate notification procedures relating to certificate 15
they must be kept;
and
suspension and revocation. ( 5 ) The Accreditation Authority may impose any conditions or restrictions necessary
when accrediting an authentication product or service.
10
Revocation or termination of accreditation
30
39. (1 ) The Accreditation Authority may suspend or revoke an accreditation if it is 20 satisfied that the authentication service provider has failed or ceases to meet any of the requirements, conditions or restrictions subject to which accreditation was granted under section 38 or recognition was given in terms of section 40.
( 3 ) Subject to the provisions of subsection (3), the Accreditation Authority may not suspend or revoke the accreditation or recognition contemplated in subsection (1) unless 25 it has-
(a) notified the authentication service provider in writing of its intention to do so; (hi given a description of the alleged breach of any of the requirements,
conditions or restrictions subject to which accreditation was granted under section 38 or recognition was given in terms of section 40; and
(i) respond to the allegations in writing; and (ii) remedy the alleged breach within a reasonable time.
(c) afforded the authentication service provider the opportunity t o -
(3) The Accreditation Authority may suspend accreditation granted under section 38 or recognition given under section 40 with immediate effect for a period not exceeding 35 90 days, pending implementation of the procedures required by subsection (2 ) , if the continued accreditation or recognition of the authentication service provider is reasonably likely to result in irreparable harm to consumers or any person involved in an electronic transaction in the Republic.
accredited in ternls of this Chapter may terminate such accreditation at any time, subject to such conditions as may be agreed to at the time of accreditation or thereafter.
(4) An authentication service provider whose products or services have been 40
Accreditation of foreign products and services
40. ( 1 ) The Minister may, by notice in the Gazerte and subject to such conditions as may be determined hy him or her, recognise the accreditation or similar recognition 45 granted to any authentication service provider or its authentication products or services in any foreign jurisdiction.
(2) An authentication service provider falsely holding out its products or services to ha\ze been recognised by the Minister in terms of subsection ( I ) , is guilty of an offence.
Accreditation regulations SO
41. The Minister may make regulations in respect of- (a) the rights and obligations of persons relating to the provision of accredited
products and services;
42 No. 23708 GOVERNMENT GAZEITE, 2 UGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
(b) the manner in which the Accreditation Authority must administer and
(c) the procedure pertaining to the granting, suspension and revocation of
(d) fees to be paid; ( e ) information security requirements or guidelines; and cf) any other relevant matter which it is necessary or expedient to prescribe for
supervise compliance with those obligations;
accreditation; 5
the proper implementation of this Chapter.
CHAPTER VI1
CONSUMER PROTECTION
Scope of application
10
42. (1) This Chapter applies only to electronic transactions. ( 2 ) Section 44 does not apply to an electronic transaction-
(a) for financial services, including but not limited to, investment services, insurance and reinsurance operations, banking services and operations 15 relating to dealings in securities;
(b ) by way of an auction; ( c ) for the supply of foodstuffs, beverages or other goods intended for everyday
consumption supplied to the home, residence or workplace of the consumer; (d) for services which began with the consumer’s consent before the end of the 20
seven-day period referred to in section 44( 1); ( e ) where the price for the supply of goods or services is dependent on
fluctuations in the financial markets and which cannot be controlled by the supplier;
(f where the goods- 25 (i) are made to the consumer’s specifications;
(ii) are clearly personalised; (iii) by reason of their nature cannot be returned; or (iv) are likely to deteriorate or expire rapidly;
consumer; (g) where audio or video recordings or computer software were unsealed by the 30
(h ) for the sale of newspapers, periodicals, magazines and books; (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 35 these services on a specific date or within a specific period.
(3) This Chapter does not apply to a regulatory authority established in terms of a law if that law prescribes consumer protection provisions in respect of electronic transactions.
Information to be provided 40
43. (1) A supplier offering goods or services for sale, for hire or for exchange by way of an electronic transaction must make the following information available to consumers on the web site where such goods or services are offered:
(a) Its full name and legal status; (6) its physical address and telephone number; 45 (c) its web site address and e-mail address; (dl membership of any self-regulatory or accreditation bodies to which that
( e ) any code of conduct to which that supplier subscribes and how that code of
If) in the case of a legal person, its registration number, the names of its office
(g) the physical address where that supplier will receive legal service of
supplier belongs or subscribes and the contact details of that body;
conduct may be accessed electronically by the consumer; 50
bearers and its place of registration;
documents;
44 No. 23708 GOVERNMENT GAZETIT, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2001
(h) a sufficient description of the main characteristics of the goods or services offered by that supplier to enable a consumer to make an informed decision on the proposed electronic transaction;
(i) the full price of the goods or services, including transport costs, taxes and any other fees or costs; 5
( j ) the manner of payment; ( k ) any terms of agreement, including any guarantees, that will apply to the
transaction and how those terms may be accessed, stored and reproduced electronically by consumers;
( I ) the time within which the goods will be dispatched or delivered or within 10 which the services will be rendered;
( n z ) the manner and period within which consumers can access and maintain a full record of the transaction;
( n ) the return, exchange and refund policy of that supplier; ( o ) any alternative dispute resolution code to which that supplier subscribes and 15
how the wording of that code may be accessed electronically by the consumer; ( p ) the security procedures and privacy policy of that supplier in respect of
payment, payment information and personal information; ( 9 ) lvhere appropriate, the minimum duration of' the agreement in the case of
agreements for the supply of products or services to be performed on an 20 ongoing basis or recurrently; and
( r ) the rights of consumers in terms of section 44, where applicable.
(a ) to review the entire electronic transaction; (hi to correct any mistakes; and 25 ( c ) to withdraw from the transaction, before finally placing any order.
(2) The supplier must provide a consumer with an opportunit)l-
(3) If a supplier fails to comply with the provisions of subsection (1) or (2) , the consumer may cancel the transaction within 14 days of receiving the goods or services under the transaction.
(4) If a transaction is cancelled in terms of subsection (3)- 30 (a) the consumer must return the performance of the supplier or, where
(b) the supplier must refund all payments made by the consumer minus the direct applicable, cease using the services performed; and
cost of returning the goods. ( 5 ) The supplier must utilise a payment system that is sufficiently secure with 35
reference to accepted technological standards at the time of the transaction and the type of transaction concerned.
(6) The supplier is liable for any damage suffered by a consumer due to a failure by the supplier to comply with subsection ( 5 ) .
Cooling-off period 40
44. ( 1 ) A consumer is entitled to cancel without reason and without penalty any transaction and any related credit agreement for the supply-
(a) of goods within seven days after the date of the receipt of the goods; or ID) of services within seven days after the date of the conclusion of the agreement.
(2) The only charge that may be levied on the consumer is the direct cost of returning 45 the goods.
(3) If payment for the goods or services has been effected prior to a consumer exercising a right referred to in subsection (1). the consumer is entitled to a full refund of such payment, which refund must be made within 30 days of the date of cancellation.
provided for in any other law. (4) This section must not be construed as prejudicing the rights of a consumer 50
Unsolicited goods, services or communications
45. ( 1 ) Any person who sends unsolicited commercial communications to consumers, must provide the consumer-
46 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
(a) with the option to cancel his or her subscription to the mailing list of that
(6) with the identifying particulars of the source from which that person obtained
(2) No agreement is concluded where a consumer has failed to respond to an 5
(3) Any person who fails to comply with or contravenes subsection (1 ) is guilty of an
(4) Any person who sends unsolicited commercial communications to a person who
person; and
the consumer’s personal information, on request of the consumer.
unsolicited communication.
offence and liable, on conviction, to the penalties prescribed in section 89( 1).
has advised the sender that such communications are unwelcome, is guilty of an offence 10 and liable, on conviction. to the penalties prescribed in section 89(1).
Performance
46. (1) The supplier must execute the order within 30 days after the day on which the supplier received the order, unless the parties have agreed otherwise .
(2) Where a supplier has failed to execute the order within 30 days or within the 15 agreed period. the consumer may cancel the agreement with seven days’ written notice.
(3) If a supplier is unable to perform in terms of the agreement on the grounds that the goods or services ordered are unavailable. the supplier must immediately notify the consumer of this fact and refund any payments within 30 days after the date of such notification. 20
Applicability of foreign law
47. The protection provided to consumers in this Chapter, applies irrespective of the legal system applicable to the agreement in question.
Non-exclusion
48. Any provision in an agreement which excludes any rights provided for in this 25 Chapter is null and void.
Complaints to Consumer Affairs Committee
49. A consumer may lodge a complaint with the Consumer Affairs Committee in respect of any non-compliance with the provisions of this Chapter by a supplier.
CHAPTER VI11 30
PROTECTION OF PERSONAL INFORMATION
Scope of protection of personal information
50. (1) This Chapter only applies to personal infommion that has been obtained
( 3 ) A data controller may voluntarily subscribe to the principles outlined in section 5 1 35
( 3 ) A data controller must subscribe to all the principles outlined in section 5 1 and not
(4) The rights and obligations of the parties in respect of the breach of the principles
through electronic transactions.
by recording such fact in any agreement with a data subject.
merely to parts thereof.
outlined in section 5 1 are governed by the terms of any agreement between them. 40
Principles for electronically collecting personal information
51. (1) A data controller must have the express written permission of the data subject
48 No. 23708 GOVERNME T GAZETIE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
for the collection, collation, processing or disclosure of any personal information on that data subject unless he or she is permitted or required to do so by law.
( 2 ) A data controller may not electronically request, collect, collate, process or store personal information on a data subject which is not necessary for the lawful purpose for which the personal information is required.
(3) The data controller must disclose in writing to the data subject the specific purpose for which any personal information is being requested, collected, collated, processed or stored.
(4) The data controller may not use the personal information for any other purpose than the disclosed purpose without the express written permission of the data subject, unless he or she is permitted or required to do so by law.
( 5 ) The data controller must, for as long as the personal information is used and for a period of at least one year thereafter, keep a record of the personal information and the specific purpose for which the personal information was collected.
(6) A data controller may not disclose any of the personal information held by it to a third party. unless required or permitted by law or specifically authorised to do so in writing by the data subject.
(7) The data controller must. for as long as the personal information is used and for a period of at least one year thereafter, keep a record of any third party to whom the personal information was disclosed and of the date on which and the purpose for which it was disclosed.
(8) The data controller must delete or destroy all personal information which has become obsolete.
(9) A party controlling personal information may use that personal information to compile profiles for statistical purposes and may freely trade with such profiles and statistical data. as long as the profiles or statistical data cannot be linked to any specific data subject by a third party.
CHAPTER IX
PROTECTION OF CRITICAL DATABASES
Scope of critical database protection
52. The provisions of this Chapter only apply to a critical database administrator and critical databases or parts thereof.
Identification of critical data and critical databases
53. The Minister may by notice in the Guzerre- (a ) declare certain classes of information which is of importance to the protection
of the national security of the Republic or the economic and social well-being of its citizens to be critical data for the purposes of this Chapter; and
( [ I ) establish procedures to be followed in the identification of critical databases for the purposes of this Chapter.
Registration of critical databases
5
10
15
20
25
30
35
40
54. ( 1 ) The Minister may by notice in the Gazerto determine- ( a ) requirements for the registration of critical databases with the Department or
(bj procedures to be followed for registration: and (cJ any other matter relating to registration. 45
such other body as the Minister may specify;
( 3 ) For purposes of this Chapter, registration of a critical database means recording the following information in a register maintained by the Department or by such other body as the Minister may specify:
( a ) The full name, address and contact details of the critical database administra-
(12) the location of the critical database, including the locations of component tor; 50
parts thereof where a critical database is not stored at a single location; and
SO No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS A D TRANSACTIONS ACT, 2002
(C) a general description of the categories or types of information stored in the critical database excluding the contents of such critical database.
Management of critical databases
55. (1) The Minister may prescribe minimum standards or prohibitions in respect of- (a) the general management of critical databases; (h) access to, transfer and control of critical databases: (c) infrastructural or procedural rules and requirements for securing the integrity
(d) procedures and technological methods to be used in the storage or archiving of
i e i disaster recovery plans in the event of loss of critical databases or parts
(f, any other matter required for the adequate protection, management and
5
and authenticity of critical data;
critical databases;
thereof; and
control of critical databases.
10
(2) In respect of critical databases administered by public bodies, all regulations 15 contemplated in subsection ( I ) must be made in consultation with all members of the Cabinet affected by the provisions of this Chapter: Provided that the Minister must not record information contemplated in section 54(2) if that information could reasonably compromise-
(a ) the security of such databases; or (0 ) the physical safety of a person in control of the critical database.
20
(3) This Chapter must not be construed so as to prejudice the right of a public body to perform any function authorised in terms of any other law.
Restrictions on disclosure of information
56. (1 ) Information contained in the register provided for in section 54 must not be 25 disclosed to any person other than to employees of the Department who are responsible for the keeping of the register.
( 2 ) Subsection ( 1 ) does not apply in respect of information which is disclosed- to a rele\,ant authority which is investigating a criminal offence or for the purposes of any criminal proceedings: 30 to government agencies responsible for safety and security in the Republic pursuant to an official request; io a cyber inspector for purposes of section 57; pursuant to sections 11 and 30 of the Promotion of Access to Information Act, 2000: or 35 for the purposes of any civil proceedings which relate to the critical data or parts thereof.
Right of inspection
57. ( 1 ) The Director-General may. from time to time, cause audits to be performed at a critical database administrator to evaluate compliance with the provisions of this 40 Chapter.
( 7 ) The audit may be performed either by cyber inspectors or an independent auditor.
Non-compliance with Chapter
58. (1) Should the audit contemplated in section 57 reveal non-compliance by the critical database administrator with this Chapter, the Director-General must notify the 45 critical database administrator thereof in writing, stating-
(cr) the finding of the audit report; ( 6 ) the action required to remedy the non-compliance; and (c) the period within which the remedial action must be performed.
52 No. 23708 GOVERNMENT GAZETTE. 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS A D TRANSACTIONS ACT, 2002
(2) A critical database administrator that fails to take the remedial action within the period stated in the notice is guilty of an offence.
CHAPTER X
DOhlAIN NAME AUTHORITY AND ADMINISTRATION
Part 1 5
Establishment and incorporation of .za domain name authority
Establishment of Authority
Incorporation of Authority
60. (1 ) The Minister must. within 12 months of the date of commencement of this Act, take all steps necessary for the incorporation of the Authority as a company contemplated in section 21(1) of the Companies Act. 1973 (Act No. 61 of 1973). 15
( 2 ) All citizens and permanent residents of the Republic are eligible for membership ofthe Authority and must be registered as members upon application and on payment of a nominal fee to cover the cost of registration of membership and without having to comply with any formality.
Minister and the members of Namespace ZA as at the date of application for incorporation must be deemed to be members of the Authority.
( 3 ) For the purpose of the incorporation of the Authority a person representing the 20
AuthoritF's memorandum and articles of association
61. ( 1 ) The memorandum of association and articles of association of the Authority InLlst be consistent with this Chapter and, except where this Chapter provides to the 25 contrary. also with the Companies Act, 1973 (Act No. 61 of 1973).
( 7 ) Notwithstanding the Companies Act. 1973. an amendment to the memorandum of association or articles of association affecting any arrangement made by any provision of this Chapter. does not have any legal force and effect unless the Minister has consented in writing to such an amendment, which consent may not be withheld 30 unreasonably.
( 3 ) No fee is payable in terms of the Companies Act. 1973, in respect of the reser\,ation of the name of the company, the registration of the said memorandum and articles and the issue of thc certificate to commence business.
others. providc for- (4) The memorandum and articles of association of the Authority must, amongst 35
( o j the rules for the convening and conducting of meetings of the Board, including the quorum required for and the minutes to be kept of those meetings:
( h i the manner in \vhich decisions are to be made: 40 (c) the establishment of any division of the Authority to perform specialised
i d ) the establishment and functioning of committees, including a management
( e ) the co-opting by the Board or a committee of any person to assist the 45
If) the preparation by the Board of an annual business plan in terms of which the
( g ) the banking and in\,estment of funds by the Board; (17) provisions to regulate the manner in which, and procedures whereby, 50
expertise from any person is obtained in order to further the objects of the Authority:
functions;
committee;
Authority or committee in the consideration of any particular matter;
activities of the Authority are planned annually;
54 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT. 2002
(i) the determination through arbitration of any dispute concerning the interpre- tation of the memorandum and articles of association of the Authority;
( j ) the delegation of powers and assignment of duties to directors, committees and employees: Provided that the Board may- (i) not be divested of any power or duty by virtue of the delegation or 5
(ii) vary or set aside any decision made under any delegation or in terms of
( k ) the procedures and criteria for the establishment and disestablishment of
(1) appeal mechanisms; (m) the tenure of directors; ( T I ) the circumstances under and the manner in which a directorship is terminated; (0) criteria for the disqualification of directors; (11) the method of determining the allowances to be paid to directors for attending IS
(9) the powers and duties of directors.
assignment; and
any assignment;
second level domains and for delegations to such domains; 10
meetings; and
Part 2
Governance and staffing of Authority
Board of directors of Authority 20
62. ( 1 ) The Authority is managed and controlled by a Board of Directors consisting of
( 2 ) The process of appointment is the following: nine directors. one of whom is the chairperson.
(01 The Minister must appoint an independent selection panel consisting of five persons. who command public respect for their fair-mindedness, wisdom and 25 understanding of issues concerning the Internet, culture, language, academia and business, the names of whom must be placed in a notice in the Gazette;
(b) the Minister must invite nominations for members of the Board from the public through newspapers which have general circulation throughout the Republic, on-line news services, radio and by notice in the Gazette; 30
( c ) nominations must be made to the panel established in terms of paragraph (a); (d) the panel must recommend to the Minister names of nine persons to be
appointed to the Board taking into account the sectors of stakeholders listed in subsection (3)lb):
( e ) if the Minister is not satisfied that the recommendations of the panel comply 35 with subsection (3) the Minister may request the panel to review its recommendations and make new ones;
If) the Minister must appoint the members of the Board. and publish the names of those appointed in the Gacette;
(g ) the Minister must appoint the Chairperson of the Board from among the 40 names recommended by the panel.
( 3 ) (a ) The Board, u.hen viewed collectively, must be broadly representative of the
(17) Sectors of stakeholders contemplated in subsection ( 2 ) ( d ) are- demographics of the country, including having regard to gender and disability.
(ij The existing Domain Name community; 4s (ii) Academic and legal sectors;
(iii) Science, technology and engineering sectors; (iv) Labour; (v) Business and the private sector;
(vi) Culture and language; 50 (vii) Public sector;
(viii) Internet user community. (4) Directors must be persons who are committed to fairness, openness and
accountability and to the objects of this Act.
56 No. 1.3708 GOVERNMENT GAZETTE. 3 AUGUST 2003
Act No. 25,2002 ELECTRONIC COMMUNICATIONS A D TRANSACTlONS ACT. 2002
( 5 ) All directors serve in a part-time and non-executive capacity. (6) Any vacancy on the Board must be filled in accordance with subsections (2) and
(3).
Staff of Authority
63. ( 1 ) The chief executive officer of the Authority appointed by the Board must 5
(2) The chief executive officer must be assisted by staff appointed by the Board. (3) The Board must determine the conditions of service, remuneration and service
(4) If the chief executive officer is for any reason unable to perform his or her 10
perform any work incidental to the functions of the Authority.
benefits of the chief executive officer and the staff.
functions, the Board may designate a person i n the service of the Authority to act as the acting chief executive officer until the chief executive officer is able to resume office.
Part 3
Functions of Authority
Licensing of registrars and registries 15
64. ( 1 ) No person may update a repository or administer a second level domain unless
(2) An application to be licensed as a registrar or registry must be made in the
(3) The Authority must apply the prescribed conditions and criteria when evaluating 20
such person is licensed to do so by the Authority.
prescribed manner and subject to the prescribed fees.
an application referred t o i n subsection (2).
Functions of Authority
65. ( 1 ) The Authority must- ( a ) administer and manage the .za domain name space; ( 1 7 ) comply with international best practice in the administration of the .za domain 25
(c) license and regulate registries; (d) license and regulate registrars for the respective registries; and (e) publish guidelines on-
name space:
( i ) the general administration and management of the .za domain name 30
(ii) the requirements and procedures for domain name registration; and (iii) the maintenance of and public access to a repository, with due regard to the policy directives which the Minister may make from time to time by notice in the Ga:ette. 35
(2) The Authority must enhance public au'areness on the economic and commercial
(3) The Authority-
space:
benefits of domain name registration.
(a ) may conduct such investigations as i t may consider necessary: ( / I ) must conduct research into and keep abreast of devclopments in the Republic 40
(c) must continually survey and e\'aluate the extent to which the .za domain name
(d ) may. from time to time, issue infornlation on the registration of domain names
(4) The Authority may, and must when so requested by the h4inister, make recommendations to the Minister in relation to policy on any matter relating to the .za domain name space.
( 5 ) The Authority must continually evaluate the effectiveness of this Act and things done in terms thereof towards the management of the .za domain name space. 50
(6) The Authority may-
and elsewhere on the domain name system;
space meets the needs of the citizens of the Republic; and
i n the Republic. 45
(a ) liaise, consult and co-operate with any person or other authority; and (b) appoint experts and other consultants on such conditions as the Authority may
determine.
58 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS A D TRANSACTIONS ACT, 2002
(7) The Authority must respect and uphold the vested rights and interests of parties that were actively involved in the management and administration of the .za domain name space at the date of its establishment: Provided that-
(a) such parties must be granted a period of six months during which they may
(b) after the expiry of the six-month period, such parties must duly apply to be continue to operate in respect of their existing delegated sub-domains; and 5
licensed registrars and registries as provided for in this Part.
Part 4
Finances and reporting
Finances of Authority 10
66. (1) All money received by the Authority must be deposited in a banking account in the name of the Authority with a bank established under the Banks Act, 1990 (Act N ~ . 94 of 19901, or a mutual bank established under the Mutual Banks Act, 1993 (Act N ~ . 124 of 1993).
ensure that- (2) The chief executive officer is the accounting officer of the Authority and must 15
(a) proper record of all the financial transactions, assets and liabilities of the Authority are kept; and
(6) as soon as possible, but not later than three months after the end of a financial year, accounts reflecting the income and expenditure of the Authority and a 20 balance sheet of the assets and liabilities of the Authority as at the nd of that financial year are prepared and submitted to the Board and Minister.
(3) The Authority is funded from- (a) the capital invested in or lent to the Authority; (6) money appropriated by Parliament for that purpose; 25 (c) income derived from the sale or other commercial exploitation of its licenses,
(d) loans raised by the Authority; (e ) the proceeds of any sale of assets; (f) income or interest earned on the Authority’s cash balances or on money 30
(g) money received by way of grant, contribution, donation or inheritance from
(4) The funds of the Authority must be utilised to meet the expenditure incurred by the
approvals, products, technology, services or expertise in terms of this Act;
invested by it; and
any source inside or outside the Republic.
Authority in connection with its functioning, business and operations in terms of this 35 Act.
( 5 ) (a) The money may be so utilised only as provided for in a statement of the Authority’s estimated income and expenditure, that has been approved by the Minister.
(b) Money received by way of grant, contribution, donation or inheritance in terms of subsection (3)(g), must be utilised in accordance with any conditions imposed by the 40 grantor, contributor, donor or testator-concerned.
(6) (a ) The Board must in each financial year, at a time determined by the Minister, submit to the Minister for approval a statement of the Authority’s estimated income and expenditure for the next financial year.
supplementary statement of estimated income and expenditure of the Authority for that financial year, to the Minister for approval.
(c) The Minister may grant the approval of the statement referred to in paragraph (a), with the agreement of the Minister of Finance.
(d) The Authority may not incur any expenditure in excess of the total amount 50 approved under paragraph (c).
(7) The Board may establish a reserve fund for any purpose that is connected with the Authority’s functions under this Act and has been approved by the Minster, and may allocate to the reserve fund the money that may be made available for the purposes in the
(b) The Board may at any time during the course of a financial year, submit a 45
60 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
statement of estimated income and expenditure or supplementary statement contem- plated in subsection (6).
(8) To the extent that the Authority is provided with start-up capital by the State, the Authority may, at the election of the Minister of Finance, be made subject to the Public Finance Management Act, (Act No. 1 of 1999), until such time as the Authority, to the 5 satisfaction of the Minister of Finance, becomes self-sustaining through the alternative sources of revenue provided for in subsection ( 3 ) .
Reports
67. As soon as practicable after the end of every financial year, the Board must submit a report on its activities during that year to the Minister who must table that report in 10 Parliament.
Part 5
Regulations
Regulations regarding Authority
68. The Authority may, with the approval of the Minister, make regulations 15 regarding-
(a) the requirements which registries and registrars must meet in order to be licensed, including objective standards relating to operational accuracy, stability, robustness and efficiency;
(b) the circumstances and manner in which registrations may be assigned, 20 registered, renewed, refused, or revoked by the registries with due regard to the express recognition of the right of groups and members of groups within the Republic to identify with, use or communicate cultural, linguistic, geographical, indigenous or any other expressions of heritage including any visual or audible elements or attributes thereof; 25
(c) pricing policy; (d) provisions for the restoration of a domain name registration and penalties for
late payments; (e) the terms of the domain name registration agreement which registries and
registrars must adopt and use in registering domain names, including issues in 30 respect of privacy, consumer protection and alternative dispute resolution;
(f) processes and procedures to avoid unfair and anti-competitive practices, including bias to, or preferential treatment of actual or prospective registrants, registries or registrars, protocols or products;
(g) requirements to ensure that each domain name contains an administrative and 35 technical contact;
(h) the creation of new sub-domains; (2) procedures for ensuring monitoring of compliance with the provisions of this
Act and the regulations provided for in this Chapter, including regular .za domain name space technical au its; 40
( j ) such other matters relating to the .za domain name space as it may be necessary to prescribe to achieve the objectives of this Chapter; and
( k ) policy to be applied by the Authority.
62 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS A D TRANSACTIONS ACT, 2002
Part 6
Alternative dispute resolution
Alternative dispute resolution
69. (1) The Minister, in consultation with the Minister of Trade and Industry, must make regulations for an alternative mechanism for the resolution of disputes in respect 5 of the .za domain name space.
(2) The regulations must be made with due regard to existing international precedent. (3) The regulations may prescribe-
(a ) procedures for the resolution of certain types of disputes determined in the
(b) the role which the Authority must fulfil in administering the dispute resolution
(c) the appointment, role and function of dispute resolution adjudicators; (d) the procedure and rules which must be followed in adjudicating disputes; ( e ) unlawful actions or activities in respect of domain names, distinguishing 15
cf) measures to prevent unlawful actions or activities with respect to domain
(g) the manner, costs of and time within which a determination must be made; (h) the implementation of determinations made in terms of the dispute resolution 20
(i) the limitation of liability of registrars and registries for implementing a
(j) the enforcement and publication of determinations.
regulations and which relate to a domain name registration;
procedure;
10
between criminal and civil liability;
names;
procedure;
determination; and
CHAPTER XI 25
LIMITATION OF LIABILITY OF SERVICE PROVIDERS
Definition
70. In this Chapter, “service provider” means any person providing infomation system services.
Recognition of representative body 30
71. (1) The Minister may, on application by an industry representative body for service providers by notice in the Gazette, recognise such body for purposes of section 72.
(2) The Minister may only recognise a representative body referred to in subsection (1) if the Minister is satisfied that- 35
(a) its members are subject to a code of conduct; (b) membership is subject to adequate criteria; (c) the code of conduct requires continued adherence to adequate standards of
(d) the representative body is capable of monitoring and enforcing its code of 40 conduct; and
conduct adequately.
Conditions for eligibility
72. The limitations on liability established by this Chapter apply to a service provider only if-
(a ) the service provider is a member of the representative body referred to in 45 section 71; and
64 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
(b) the service provider has adopted and implemented the official code of conduct of that representative body.
Mere conduit
73. (1) A service provider is not liable for providing access to or for operating facilities for information systems or transmitting, routing or storage of data messages via 5 an information system under its control, as long as the service provider-
(a) does not initiate the transmission; (b) does not select the addressee; (c) performs the functions in an automatic, technical manner without selection of
(d) does not modify the data contained in the transmission. the data; and 10
(2) The acts of transmission, routing and of provision of access referred to in subsection (1) include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place-
(a) for the sole purpose of carrying out the transmission in the information 15
(b) in a manner that makes it ordinarily inaccessible to anyone other than
(c) for a period no longer than is reasonably necessary for the transmission.
system;
anticipated recipients; and
(3) Notwithstanding this section, a competent court may order a service provider to 20 terminate or prevent unlawful activity in terms of any other law.
Caching
74. (1) A service provider that transmits data provided by a recipient of the service via an information system under its control is not liable for the automatic, intermediate and temporary storage of that data, where the purpose of storing such data is to make the 25 onward transmission of the data more efficient to other recipients of the service upon their request, as long as the service provider-
( a ) does not modify the data; (b) complies with conditions on access to the data; (c) complies with rules regarding the updating of the data, specified in a manner 30
(d) does not interfere with the lawful use of technology, widely recognised and
(e ) removes or disables access to the data it has stored upon receiving a
(2) Notwithstanding this section, a competent court may order a service provider to
widely recognised and used by industry;
used by industry, to obtain information on the use of the data; and
take-down notice referred to in section 77. 35
terminate or prevent unlawful activity in terms of any other law.
Hosting
75. (1) A service provider that provides a service that consists of the storage of data provided by a recipient of the service, is not liable for damages arising from data stored 40 at the request of the recipient of the service, as long as the service provider-
(a) does not have actual knowledge that the data message or an activity relating to the data message is infringing the rights of a third party; or
(b) is not aware of facts or circumstances from which the infringing activity or the infringing nature of the data message is pp rent; and 45
(c) upon receipt of a take-down notification referred to in section 77, acts expeditiously to remove or to disable access to the data.
(2) The limitations on liability established by this section do not apply to a service provider unless it has designated an agent to receive notifications of infringement and has provided through its services, including on its web sites in locations accessible to the 50 public, the name, address, phone number and e-mail address of the agent.
terminate or prevent unlawful activity in terms of any other law. (3) Notwithstanding this section, a competent court may order a service provider to
66 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
(4) Subsection (1) does not apply when the recipient of the service is acting under the authority or the control of the service provider.
Information location tools
76. A service provider is not liable for damages incurred by a person if the service provider refers or links users to a web page containing an infringing data message or 5 infringing activity, by using information location tools, including a directory, index, reference, pointer, or hyperlink, where the service provider-
( a ) does not have actual knowledge that the data message or an activity relating to
(b) is not aware of facts or circumstances from which the infringing activity or the 10
(c) does not receive a financial benefit directly attributable to the infringing
(d) removes, or disables access to, the reference or link to the data message or
the data message is infringing the rights of that person;
infringing nature of the data message is apparent;
activity; and
activity within a reasonable time after being informed that e data message or 15 the activity relating to such data message, infringes the rights of a person.
Take-down notification
77. (1) For the purposes of this Chapter, a notification of unlawful activity must be in writing, must be addressed by the complainant to the service provider or its designated agent and must include- 20
(a) the full names and address of the complainant; (b) the written or electronic signature of the complainant; (c) identification of the right that has allegedly been infringed; (d) identification of the material or activity that is claimed to be the subject of
(e) the remedial action required to be taken by the service provider in respect of
(’ telephonic and electronic contact details, if any, of the complainant; (8) a statement that the complainant is acting in good faith; (h) a statement by the complainant hat he information in the take-down 30
unlawful activity; 25
the complaint;
notification is to his or her knowledge true and correct; and (2) Any person who lodges a notification f unlawful activity with a service provider
knowing that it materially misrepresents the facts is liable for damages for wrongful take-down.
notification. (3) A service provider is not liable for wrongful take-down in response to a 35
No general obligation to monitor
78. (1) When providing the services contemplated in this Chapter there is no general obligation on a service provider to-
(a) monitor the da a which it transmitsor stores; or 40 (b) actively seek facts or circumstances indicating an unlawful activity.
(2) The Minister may, subject to section 14 of the Constitution, prescribe procedures
(a ) inform the competent public authorities of alleged illegal activities under-
(b) to communicate to the competent authorities, at their request, information
for service-providers to-
taken ori formation provided by recipients of their service; and 45
enabling the identification of recipients of their service.
Savings
79. This Chapter does not affect- (a) any obligation founded on an agreement; 50
68 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS A D TRANSACTIONS ACT, 2002
(6) the obligation of a service provider acting as such under a licensing or other
(c) any obligation imposed by law or by a court to remove, block or deny access
(d) any right to limitation of liability based on the common law or the - 5
regulatory regime established by or under any law;
to any data message; or
Constitution.
CHAPTER XI1
CYBER INSPECTORS
Appointment of cyber inspectors
80. (1) The Director-General may appoint any employee of the Department as a cyber 10 inspector empowered to perform the functions provided for in this Chapter.
(2) A cyber inspector must be provided with a certificate of appointment signed by or on behalf of the Director-General in which it is stated that he or she has been appointed as a cyber inspector.
electronic signature.
must-
(3) A certificate provided for in subsection (2) may be in the form of an advanced 15
(4) When a cyber inspector performs any function in terms of this Act, he or she
(a) be in possession of a certificate of appointment referred to in subsection (2);
(b) show that certificate to any person who- and 20
(i) is subject to an investigation or an employee of that person; or (ii) requests to see the certificate.
( 5 ) Any person who- (a) hinders or obstructs a cyber inspector in the performance of his or her 25
(b) falsely holds himself or herself out as a cyber inspector, functions in terms of this Chapter; or
is guilty of an offence.
Powers of cyber inspectors
81. (1) A cyber inspector may- 30 (a) monitor and inspect any web site or activity on an information system in the
public domain and report any unlawful activity to the appropriate authority; (b) in respect of a cryptography service provider-
(i) investigate the activities of a cryptography service provider in relation to
(ii) issue an order in writing to a cryptography service provider to comply its compliance or non-compliance with the provisions of this Act; and 35
with the provisions of this Act; (c) in respect of an authentication service provider-
(i) investigate the activities of an authentication service provider in relation to its compliance or non-compliance with the provision's of this Act; 40
(ii) investigate the activities of an authentication service provider falsely holding itself, its products or services out as having been accredited by the Authority or recognised by the Minister as provided for in Chapter VI;
(iii) issue an order in writing to an authentication service provider to comply 45 with the provisions of this Act; and
(d) in respect of a critical database administrator, perform an audit as provided for
(2) Any statutory body, including the South African Police Service, with powers of inspection or search and seizure in terms of any law may apply for assistance from a 50 cyber inspector to assist it in an investigation: Provided that-
in section 57.
70 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS A D TRANSACTIONS ACT. 2002
(a) the requesting body must apply to the Department for assistance in the
(b) the Department may authorise such assistance on certain conditions. prescribed manner; and
Power to inspect, search and seize
82. (1) A cyber inspector may, in the performance of his or her functions, at any 5 reasonable time, without prior notice and on the authority of a warrant issued in terms of section 83( l), enter any premises or access an information system that has a bearing on an investigation and-
(a) search those premises or that information system; (b) search any person on those premises if there are reasonable grounds for 10
believing that the person has personal possession of an article, document or record that has a bearing on the investigation;
(c) take extracts from, or make copies of any book, document or record that is on or in the premises or in the information system and that has a bearing on the investigation; 15
(d) demand the production of and inspect relevant licences and registration certificates as provided for in any law;
( e ) inspect any facilities on the premises which are linked or associated with the information system and which have a bearing on the investigation;
(f) have access to and inspect the operation of any computer or equipment 20 forming part of an information system and any associated apparatus or material which the cyber inspector has reasonable cause to suspect is or has been used in connection with any offence;
(8) use or cause to be used any information system or part thereof to search any data contained in or available to such information system; 25
(h) require the person by whom or on whose behalf the cyber inspector has reasonable cause to suspect the computer or information system is or has been used, or require any person in control of, or otherwise involved with the operation of the computer or information system to provide him or her with such reasonable technical and other assistance as he or she may require for the 30 purposes of this Chapter; or
(i) make such inquiries as may be necessary to ascertain whether the provisions of this Act or any other law on which an investigation is based, have been complied with.
(2) A person who refuses to co-operate or hinders a person conducting a lawful search 35
(3) The Criminal Procedure Act, 1977 (Act NO. 51 of 1977), applies with the
(4) For purposes of this Act, any reference in the Criminal Procedure Act, 1977, to
and seizure in terms of this section is guilty of an offence.
necessary changes to searches and seizures in terms of this Act.
“premises” and “article” includes an information system as well as data messages. 40
Obtaining warrant
83. (1) Any magistrate or judge may, upon a request from a cyber inspector but subject to the provisions of section 25 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), issue a warrant required by a cyber inspector in terms of this Chapter.
where- (2) For the purposes of subsection (I) , a magistrate or judge may issue a warrant 45
(a) an offence has been committed within the Republic; (b) the subject of an investigation is-
(i) a South African citizen or ordinarily resident in the Republic; or (ii) present in the Republic at the time when the warrant is applied for; or 50
(c) information pertinent to the investigation is accessible from within the area of jurisdiction of the court.
(3) A warrant to enter, search and seize may be issued at any time and must- (a) identify the premises or information system that may be entered and searched;
and 55
72 No. 23708 GOVERNMENT GA,ZE?TE, 2 AUGUST 2002
Act No. 5 , 2 0 0 2 ELECTRONIC COMMUNICATIONS A D TRANSACTIONS ACT. 2003
(b ) specify which acts may be performed thereunder by the cyber inspector to whom it is issued.
(4) A warrant to enter and search is valid until- (a) the warrant has been executed; (0) the warrant is cancelled by the person who issued it or in that person's 5
(c) the purpose for issuing it has lapsed; or (d) the expiry of one month from the date on which it was issued.
absence, by a person with similar authority;
(5) A warrant to enter and search premises map be executed only during the day, unless the judge or magistrate who issued it, authorises that it may be executed at any 10 other time.
Preservation of confidentialit>
84. (1) Except for the purpose of this Act or for the prosecution of an offence or pursuant to an order of court. a person who has, pursuant to any powers conferred under this Chapter. obtained access to any information may not disclose such information to 15 any other person.
con\,iction to a fine or to imprisonment for a period not exceeding six months. ( 2 ) An! person u,ho contravenes subsection ( 1 ) is guilty of an offence and liable on
CHAPTER XI11
CYRER CRIME 20
Definition
85. In this Chapter. unless the context indicates othern 'se- ' "access" includes the actions of a person who, after taking note of any data, becomes aware of the fact that he or she is not authorised to access that data and still continues to access that data. 25
Unauthorised access to, interception of or interference with data
86. (1 i Subject to the Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of 1993). a person who intentionally accesses or intercepts any data without authority or permission to do so. is guilty of an offence.
a Lvay which causes such data to be modified, destroyed or otherwise rendered ineffective. is guilt). of an offence.
(3) A person v,ho unlawfully produces, sells, offers to sell. procures for use, designs. adapts for use. distributes or possesses any de\Jice. including a computer program or a component. \vhich is designed primaril!, to overcome securit!. measures for the 35 protection of data. or performs an)' of those acts with regard to a password, access code 01' an)' other similar kind of data uith the intent to unlawfully utilise such item to contravene this section. is guilt! of an offence. (4) A person n.ho utilises an! device or computer program mentioned in subsection
( 3 ) i n order to unlawfull). overcome securit!, measures designed to protect such data or 40 ;Icccss thcrcto. is su i l t j . of an oili'encz.
(5) A person \vho commits any act described in this section with the intent to interfere with access to an information system so as to constitute a denial. including a partial denial, of ser\.ice to legitimate users is guilty of an offence.
( 7 ) A person who intentionall:, and Iaithout authority to do so. interferes with data in 30
Computer-related extortion, fraud and forgery 45
87. ( I ) A person who performs or threatens to perform an!' of the acts described in section 86. for the purpose of obtaining any unlawful proprietary advantage by undertahng to cease or desist from such action. or by undertaking to restore any damage caused as a result of those actions. is guilty of an offence.
74 No. 23708 GOVERNMENT GAZElTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002
(2) A person who performs any of the acts described in section 86 for the purpose of obtaining any unlawful advantage by causing fake data to be produced with the intent that it be considered or acted upon as if it were authentic, is guilty of an offence.
Attempt, and aiding and abetting
88. (1) A person who attempts to commit any of the offences referred to in sections 86 5 and 87 is guilty of an offence and is liable on conviction to the penalties set out in section 89(1) or (2), as the case may be.
(2) Any person who aids and abets someone to commit any of the offences referred to in sections 86 and 87 is guilty of an offence and is liable on conviction to the penalties set out in section 89( 1) or (2) , as the case may be. 10
Penalties
89. ( 1 ) A person convicted of an offence referred to in sections 37(3), 40(2), 58(2) , 80(5) . 82(2) or 86(1), (2) or (3) is liable to a fine or imprisonment for a period not exceeding 12 months.
is liable to a fine or imprisonment for a period not exceeding five years. (2) A person convicted of an offence referred to in section 86(4) or ( 5 ) or section 87 15
CHAPTER XIV
GENERAL PROVISIONS
Jurisdiction of courts
90. A court in the Republic trying an offence in terms of this Act has jurisdiction 20 where-
(nj the offence was committed in the Republic; (bj any act of preparation towards the offence or any part of the offence was
committed in the Republic, or where any result of the offence has had an effect in the Republic; 25
(c) the offence was committed by a South African citizen or a person with permanent residence in the Republic or by a person carrying on business in the Republic; or
(d) the offence was committed on board any ship or aircraft registered in the Republic or on a voyage or flight to or from the Republic at the time that the 30 offence was committed.
Saving of common law
91. This Chapter does not affect criminal or civil liability in terms of the common law.
Repeal of Act 57 of 1983
92. The Computer Evidence Act. 1983, is hereby repealed. 35
Limitation of liability
93. Neither the State, the Minister, nor any employee of the State is liable in respect of any act or omission in good faith and without gross negligence in performing a function in terms of this Act.
Regulations 40
94. The Minister may make regulations regarding any matter that may or must be prescribed in terms of this Act or any matter which it is necessary or expedient to prescribe for the proper implementation or administration of this Act.
76 No. 23708 GOVERNMENT GAZE'ITE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT. 2002
Short title and commencement
95. This Act is called the Electronic Communications and Transactions Act, 2002, and comes into operation on a date fixed by the President by proclamation in the Gazette.
78 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS A D TRANSACTIONS ACT. 2002
SCHEDULE 1
(see section 4(3))
Item
12 and 13 Bills of Exchange Act, 1964 (Act No. 34 of 1964) 3. 12 and 13 Alienation of Land Act, 1981 (Act No. 68 of 1981) 2.
11, 12, 13, 14, 15, Wills Act, 1953 (Act No. 7 of 1953) 1. Column B Column A
16, 18, 19 and 20
~
14. I Stamp Duties Act, 1968 (Act No. 77 of 1968) 111, 12, 4
80 No. 23708 GOVERNMENT GAZETTE, 2 AUGUST 2002
Act No. 25,2002 ELECTRONIC COMMUNICATIONS A D TRANSACTIONS ACT, 2002
SCHEDULE 2
(see section 4(4))
1.
The execution of a bill of exchange as defined in the Bills of Exchange Act, 1964 (Act 4.
The execution, retention and presentation of a will or codicil as defined in the Wills Act, 3.
An agreement for the long-term lease of immovable property in excess of 20 years as 2.
An agreement for alienation of immovable property as provided for in the Alienation of Land Act, 1981 (Act No. 68 of 1981).
provided for in the Alienation of Land Act, 1981 (Act No. 68 of 1981).
1953 (Act No. 7 of 1953).
No. 34 of 1964).