Recent Cases in E-commerce and Social media

Recent Cases in E-commerce and Social media Lex-Informatica – SA Cyberlaw / ICT Conference – 2014 “Legal Advancements in ICT Law / Cyberlaw” 25-26 September 2014 Sizwe Snail kaMtuze Director Snail Attorneys Inc Adjunct Research Fellow – University of Fort Hare

South African response to e-commerce – The Electronic Communications and Transactions Act, Act 25 0f 2002

South African response to e-commerce – The Electronic Communications and Transactions Act, Act 25 0f 2002 • After many years of legal uncertainty, Parliament enacted the Electronic Communications and Transactions Act, Act 25 of 2002 (ECT) which comprehensively deals with E-commerce as aspects and Cyber-crimes • One must however, note section 3of the ECT (its interpretation clause) which does not exclude any statutory or common law from being applied to, recognizing or accommodating electronic transactions – in other words the common law or other statues in place wherever applicable is still in force and binding which has the result that wherever the ECT has not made specific provisions such law will be applicable.

Legal recognition of data messages After many years of legal uncertainty, on the 2nd August 2002, South African parliament assented to and brought into force the Electronic Communications and Transactions Act (ECT) . Prior to the Electronic Communications and transactions Act (ECT) , South Africa had not enacted any exclusive Internet legislation that comprehensively defined the legal definitions of the terms “writing”, ”signature” and ”originals” in their application to electronic transacting. The preamble of the ECT clearly shows that this is a piece of pioneering legislation - “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 transaction 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 herewith.” The recognition of data messages for the purposes of conducting legally relevant acts has now been entrenched into our law by virtue of section 11 of the ECT. It similarly follows Article 11 of the United Nations Commission on International Trade Model Law on Electronic Commerce (UNICITRAL Model Law on E-Commerce) as well as Article 8 of United Nations Convention on the use of Electronic Communications in International Contracts which states that:

Legal recognition of data messages (cont.) • Section 11 of the ECT reads as follows: • (1) Information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message. • (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. Information incorporated into an agreement and that is not in the public domain is regarded as having been incorporated into a data message if such information is: • (a) referred to in a way which a reasonable person would have noticed the reference NB : • thereto and incorporation thereof and; • accessible in a form in which it may be read • CASES DECIDED BY SOUTH AFRICAN COURT ON SECTION 11 and Section 12 of the ECT • See the case of S B Jafta v Ezemvelo KZN Wildlife ( Case D204/07 ) the Labour Court had to decide as to whether an e-mail u and sms used to accept an employment contract was regarded as conclusive proof the said employment had been accepted. • In another case the Labor Court in Mafika v SABC Ltd (LC case no: J 700/08) • held that the employee had validly resigned by way of SMS which constituted “writing” in terms of the employment contract .

Signature requirements • Section 13 of the ECT ensures that data messages can satisfy the signature requirement by providing that: • Section 13 of the ECT reads as follows: • (1) Where the signature of a person is required by law, that requirement in relation to a data message is met only if an advanced electronic signature is used. • (2) Subject to subsection (1) an electronic data message is not without legal force and 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 method is used to identify the person and indicate the person’s approval of the information contained and; • (b) having regard to all 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 as having created a valid electronic signature and to have been applied properly, unless the contrary is proved. (5) Subsection (4) does not preclude any person from - (a) establishing the validity of an advanced electronic signature in any other way; or (b) Adducing evidence of the non-validity of an advanced electronic signature. Section 13 of the ECT ensures that data messages can satisfy the signature requirement. Section 13 (1) of the ECT provides, “Where the signature of a person is required by law, that requirement in relation to a data message is met only if an advanced electronic signature is used.” However, section 13 (2) states that an electronic signature shall not be without legal form merely because it is in electronic form and does not necessarily preclude signatures that are not electronic advanced signatures. In the first instance as prescribed by section 13 (2) any electronic signature or a distinct electronic mark could be sufficient for the existence of a digital contract. In the second instance as prescribed by section 13 (1) the electronic signature would have to be advanced electronic signature and would have to be provided by the South African Department of Communications (the identified accreditation authority as required by section 13 (4) of the ECT). The third and last instance as provided for by section 13 (3) is in the instance were an electronic signature has not been used at all but the intent to be contractually bound has been expressed.

Writing Where data messages are used to communicate messages or documentation, the question arises as to whether such data messages have legal validity equal to messages written on paper. Is the employer effectively bound by the correspondences that are entered into by his bona fide employees? What is the status of electronic writing and electronic signatures? (E.g. E-mail, Blackberry etc) Section 12 of the ECT reads as follows: A requirement under law that a document or information be in writing is met if the document or information is - (a) in the form of a data message; and (b) accessible in a manner usable for subsequent reference The intentions of the legislature are clear from the simple wording of the above provision. Furthermore, section 22 (1) of the ECT guarantees the validity of agreements concluded either partly or wholly by a data message Mafika v SABC Ltd (LC case no: J 700/08) held that the employee had validly resigned by way of SMS which constituted “writing” in terms of the employment contract .

. The ECT specifically however excludes four different instances were and electronic writing or signature would not be valid. The four excluded acts are : 1. Concluding an agreement for the Alienation (disposal) of immovable property as provided for in the Alienation of Land Act . 2. Concluding an agreement for a long-term of immovable property in excess of 20 years as provided for in the Alienation of Land Act . 3. The execution of a bill of exchange as defined in the Bills of Exchange Act . 4. The execution, retention and presentation of a will or codicil as defined in the Wills Act . CASES DECIDED BY SOUTH AFRICAN COURT ON SECTION 13 OF ECT Mac Donald v The Master 2002 5 (SA) O 697 the Court held, a Court may condone a “draft will” in the form of an electronically stored document, which was stored on a computer hard-disk in terms of section 2(3) of the Wills Act, if not all statutory requirements have been satisfied and admit such as valid proof of an existing will and also Van der Merwe v the Master .

Time and place of where the contract enters into effect The moment and place of contract conclusion of electronic contracts are now being regulated by section 22 (2) of the ECT which states: Section 22 (2) of the ECT states the following: “An agreement concluded between parties by means of data messages is concluded at the time and place where the acceptance of the offer was received by the offeror “ Section 23 of the ECT states the following: 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 (b) 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 (c) must be regarded as having been sent from the originators usual place of business or residence and as having been received at the addressee’s usual place of business or residence See the case of S B Jafta v Ezemvelo KZN Wildlife ( Case D204/07 )

Privacy and Social Media Caselaw Studies from South Africa

The Right to Privacy and Dignity and social media • The Right to Privacy and Dignity in terms of Constitution is enshrined in Section 14 of the Bill of Rights provides that: • “Everyone has the right to privacy, which includes the right not to have- (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed.” • In addition Section 10 of the Bill of Rights provides that “Everyone has inherent dignity and the right to have their dignity respected and protected.” • In addition Section 86 of the in Electronic Communications Act 25 of 2002 (ECT) several part of RICA Act 70 of 2002 have outlawed unlawful interception and monitoring of communications save for where there is written consent or there are legality accepted grounds of justification as stipulated in the RICA or you are a party to the communication.

Privacy and Social Media Caselaw Studies from South Africa • The risk of the use Social Media for attorneys and their clients has become a serious legal issue in light of the “right to privacy “ and the “right of freedom of expression” as enshrined in our Constitution. • Our Courts have not been oblivious to technological development and have started accepting that the internet and social media can be used as a suitable medium to serve Court papers were suitable ( see the case of CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens (KZD) ), (unreported case no 6846/2006, 3-8-2012 ) • employees dismissal can been confirmed by the CCMA based on social media misconduct , the Courts may grant interdicts against persons ordering them to remove offensive or defamatory content from public social media pages and also the extension of the claim for damages as a result from defamation on a social media platform has now been recognised and confirmed.

Do you have a legitimate expectation on social media platforms ? • Do you still have a legitimate expectation right to privacy ( as stated in the case of Bernstein v Bester ) by mere setting your social media setting to a select few ? [1996] 2 SA 751 (cc) • Everybody has the right not have his private social media account to be hacked and personal information being disseminated or particulars views expressed to the public without their prior consent. • This should be seen in light of Section 16(1) of the Bill of Rights provides that “Everyone has the right to freedom of expression, which includes- • (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freed of artistic creativity; and (d) academic freedom and freedom of scientific research.” The exposure of ones views on a particular issues may be legally their right on their private social media page but if such information were to be leaked the right to freedom of expression must be balanced with the right of other not to be disparaged or defamed.

The Right to Privacy as Interpreted by the Courts

Privacy and Social Media Caselaw Studies from South Africa Sedick & another v Krisray (Pty) Ltd (2011) 8 BLLR 979 (CCMA) – defamatory pasting about employer on Facebook dismissible Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA) - defamatory pasting about employer on Facebook dismissible

Privacy and Social Media Caselaw Studies from South Africa Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 ILJ 2217 (CCMA) * the employee of a radio station criticised the organisation’s board and claimed its station manager was a criminal. The CCMA found that the employee was fairly dismissed as he had posted unfounded allegations on Facebook without having addressed these internally first. Smith v Partners in Sexual Health (non-profit) (2011) 32 ILJ 1470 (CCMA) * employer must not access employee private mails even if auto login function on at work computer,

Privacy and Social Media Caselaw Studies from South Africa • H v W * Users of Facebook may be interdicted and ordered to remove defamatory comments of facebook . • Isparta v Richter * Liking a defamatory post on Facebook may result in a suits for damages • R ,K ,M v R, L ,B * Users of Facebook may be interdicted and ordered to remove defamatory comments of facebook .

Privacy v Right to Freedom of Expression • CCMA is prepared to consider what an employee says on his/her social media profile in determining the substantive fairness of a dismissal • Employees who make derogatory, harassing or discriminatory remarks on social media, do so at their own peril • Freedom of expression versus privacy • Freedom of expression does not amount to an unfettered right to defame others SOCIAL MEDIA USE, ABUSE AND MISCONDUCT, Lenja Dahms-Jansen (2013) ,

Q & A

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Recent Cases in E-commerce and Social media