LML4810_ Legal Aspects Of Electronic Commerce_ ASSIGNMENT 02 2021.

LML4810 - Legal Aspects Of Electronic Commerce. LML4810_ Legal Aspects Of Electronic Commerce_ ASSIGNMENT 02 2021. The ECT Act was originally the only legislation directly regulating spam in South Africa and in section 45 it refers to spam as “unsolicited commercial electronic communications sent to consumers”. However as of 1 April 2011 the CPA became applicable in South African law and has very specific provisions that relate to “direct marketing”. The CPA has not repealed section 45 of the ECT Act and therefore the two Acts concurrently regulate aspects of spam, unsolicited electronic communications, or direct marketing1 - For instance, in the in the United States and Australia, spam is referred to as unsolicited Commercial electronic message (UCE)2 In New Zealand it is called unsolicited electronic message (UEM)3 , In the EU it is referred to as unsolicited bulk or broadcast e-mail (UBE)4 , and in South Africa it is called Unsolicited Commercial Communications (UCC) by the Electronic Communications and Transactions Act (‘the ECT Act’)5 . - The Word “unsolicited” implies that there is either no prior relationship between the sender of the SPAM and the recipient, or at the very least, that the recipient has not consented to receiving a communication6 . 1.2. SPAM under the ECT7 Act - Section 45 of the ECT Act regulates (does not prohibit) the sending of unsolicited commercial electronic communications to consumers. In terms of this section, senders are firstly required to give the consumer the option to 1 Papadopoulos “Are we about to cure the scourge of spam? A commentary on current and proposed South African legislative intervention” (2012) 75 THRHR 223-240 2 TLADI “The Regulation of unsolicited commercial communications (SPAM): is the Opt-Out mechanism effective?” (2008) 125 (1) SALJ 178-192 3 TLADI “The Regulation of unsolicited commercial communications (SPAM): is the Opt-Out mechanism effective?” (2008) 125 (1) SALJ 178-192 4 TLADI “The Regulation of unsolicited commercial communications (SPAM): is the Opt-Out mechanism effective?” (2008) 125 (1) SALJ 178-192 5 TLADI “The Regulation of unsolicited commercial communications (SPAM): is the Opt-Out mechanism effective?” (2008) 125 (1) SALJ 178-192 6 TLADI “The Regulation of unsolicited commercial communications (SPAM): is the Opt-Out mechanism effective?” (2008) 125 (1) SALJ 178-192 7 The Electronic Communications and Transactions Act 25 of 2002 opt-out of the mailing list and secondly, if so requested by the consumer, to reveal the source where the email address or cell phone number was obtained8 . - Section 45 will only apply to an electronic transaction where one party is a consumer who intends on entering an electronic transaction with a supplier. - A failure to comply with these requirements is an offence in terms of section 89(1) with penalties that include fines and imprisonment of up to 12 months. Finally, it confirms that no agreement is concluded where a consumer fails to respond to the unsolicited communication9 . - The ECT Act follows an “opt out” regime and to stop the spam messaging under the ECT Act, all you must do is ask the sender to stop. If they do not you can report them to the police, their failure to stop is a criminal act and is punishable under section 89(1) of the Act. - However, the efficacy of section 89 in respect of spam may be questionable, as section 89 of the ECT Act contains a list of sections to which penalties may apply and section 45 is not included on that list. The ECT Act has thus created a criminal offence for which no penalty exists.10 SPAM Under the Constitution of South Africa The constitutional implications of spam are not restricted to the rights of the receiver, the spammer could assert a right to freedom of expression averring that in terms of section 16(1)(b)11 of the constitution, he is free to impart in. the situation then presents itself that the receiver’s right to privacy must be weighed against the spammers right to freedom of expression. SPAM under the CPA12 The Consumer protection Act (CPA) deals indirectly with Spam through its direct marketing provisions in Section 16 of the Act, which overlap with Spam. Spam qualifies as direct marketing as described in section 1 of the consumer protection Act.13 “Direct marketing” is defined in Section 1 of the CPA as an approach to a person, either in person or by mail or electronic communication for the direct or indirect purpose of promoting, offering to supply, in the ordinary course of business, any goods or services or to request a donation of any kind14 . 8 Papadopoulos “Are we about to cure the scourge of spam? A commentary on current and proposed South African legislative intervention” (2012) 75 THRHR 223-240 9 Papadopoulos “Are we about to cure the scourge of spam? A commentary on current and proposed South African legislative intervention” (2012) 75 THRHR 223-240 10 TLADI “The Regulation of unsolicited commercial communications (SPAM): is the Opt-Out mechanism effective?” (2008) 125 (1) SALJ 178-192 11 Constitution of the republic of South Africa, Act 108 of 1996 12 The Consumer Protection Act 68 of 2008 13 Eislen in information and communications Technology Law 207-210 14 Papadopoulos “Are we about to cure the scourge of spam? A commentary on current and proposed South African legislative intervention” (2012) 75 THRHR 223-240 An “electronic communication” for the purposes of “direct marketing” is a communication by means of electronic transmission including telephone, fax, SMSs, wireless computer access, email or similar technology or device. Specifically, section 11 of the CPA sets out the consumer’s right to restrict unwanted direct marketing. Under the CPA Regulations, Regulation 4 finally establishes the practicalities for controlling direct marketing communications, a comprehensive prohibition for any medium of communications, address or time whatsoever in his or her sole discretion, as the factor which triggers the pre-emptive block contemplated in section 11(3) of the CPA. In terms of Section 12 of the CPA, Marketers may not send direct marketing messages during times specified by regulation. Currently spam may not be sent on Sundays or public holidays, Saturdays before 09h00 and after 13h00 and all other days between 20h00 and 8h00 the following day except with the consent of the consumer.15 Section 32(2) of the CPA contains a dire warning for direct marketers in that when any person who has marketed goods and left these goods with the consumer without requiring or arranging for payment, those goods become unsolicited goods to which section 21 applies. Section 21 allows consumers under certain circumstances to keep the goods without an obligation to pay16 . The CPA also follows an “opt-out” regime and provides every consumer with the right to ask direct marketers to desist from engaging in any direct marketing (whether electronic or otherwise). It also allows a consumer to pre-emptively block any such communications by registering a pre-emptive block on with the national register against such marketing. The registry is established in regulation 4(3) that will allow consumers to register their details in order to block direct marketing. The ECT Amendment Bill Despite the intention that the POPI will repeal section 45 of the ECT Act, the department of communications published the proposed Electronic Communications and Transaction Act Amendment Bill (ECT Amendment Bill), where it is suggested that section 45 be amended. The ECT Amendment bill proposes that section 45 be amended to read as follows: (1) No person may send unsolicited communications without the permission of the consumer to whom the unsolicited communications are in fact sent. (2) No agreement is concluded where a consumer has failed to respond to an unsolicited communication 15 Eislen in information and communications Technology Law 207-210 16 P Papadopoulos “Are we about to cure the scourge of spam? A commentary on current and proposed South African legislative intervention” (2012) 75 THRHR 223-240 (3) Any person who fails to comply with or contravenes subsection 1 is guilty of an offence, and liable on conviction, to a fine not exceeding R1 million or imprisonment not exceeding one year. SPAM Under the POPI Act17 The POPI Act applies to the processing of personal information entered into a record by or for a responsible party by making use of automated or non-automated means; provided that when the recorded personal information is processed by nonautomated means, it forms part of a filing system or is intended to form part thereof. This Act applies to all public and private bodies18 . Direct marketing is also dealt with in section 69 of the Protection of personal information Act (POPI), which has not commenced yet. POPI makes it unlawful for a direct marketer to market directly to a person unless: - They have given their prior consent; or - They are an existing customer POPI, therefore aims to change the position of direct marketing from opting out under the ECT and CPA, to that of opting in like the USA and Australian laws. The POPI Act will repeal and replace amongst others, section 45 of the ECT Act. This section will be replaced with Chapter 8, sections 69–71, setting out the rights of data subjects regarding direct marketing via unsolicited electronic communications, directories and automated decision making19 . The POPI Act is an improvement on section 45 of the ECT Act, in-so-far as it prohibits the processing of personal information for direct marketing purposes unless the data subject has given consent to the processing (that is, an opt-in system); or is, subject to subsection (3), a customer of the responsible party20 . “Consent” is defined as any voluntary, specific and informed expression of will in terms of which permission is given for the processing of personal information. International Law regulating Spam USA The CAN-SPAM21 Act 17 The Protection of Personal Information Act 4 of 2013 18 Haman and Papadopoulos “Direct marketing and spam via electronic communications: An analysis of the regulatory framework in South Africa” (2014) 47 1 De Jure 42-62 19 Haman and Papadopoulos “Direct marketing and spam via electronic communications: An analysis of the regulatory framework in South Africa” (2014) 47 1 De Jure 42-62 20 Haman and Papadopoulos “Direct marketing and spam via electronic communications: An analysis of the regulatory framework in South Africa” (2014) 47 1 De Jure 42-62 21 Controlling the Assault of Non-solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act) In the USA, spam is regulated under the Controlling the Assault of Non-solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act).The Act came into operation in 1st January 2004, prior to this, different states in the USA had either antispam legislations or provisions in their existing Acts which regulated the Spam. The CAN-SPAM ACT has created penalties for different unlawful acts committed while spamming. The Act establishes the commission whose duty is to prevent any person from violating the provisions of the Act. Additional fines are provided to people who do not only violated spamming Acts, but also for harvesting e-mail addresses from websites or web services that have published a notice prohibiting the transfer of email addresses for the purpose of sending e-mail. State officials may also institute civil actions against the perpetrator/s on behalf o the recipient and claim damages from them of up to $2 million for any violation of section 5 of the Act. The CAN-SPAM Act establishes the requirements that must be met by those who send commercial e-mails and it spells out penalties for senders and companies whose products are advertised in spam violations. Like the ECT Act, the CAN-SPAM Act gives the consumers the right to ask the senders of the spam to stop sending it. The wording “Commercial” is not covered in the ECT Act, the foreign Law: CANSPAM Act covers commercial messaging and it relates this to messages whose primary purpose is to advertise or promote goods or services. Therefore, noncommercial communications such as newsletters, opinion surveys, religious messages, political content, virus warnings and virus hoaxes, urban legends, news, chain letters and hate-mail are not regulated as spam under the ECT Act.