LML4810 PORTFOLIO MEMO (DETAILED MEMO) OCTOBER 2021 SUPER SEMESTER UNISA

Question 1 Compare and contrast the facilitation of electronic transactions provisions in the Electronic Communications and Transactions Act (ECTA) 25 of 2002 with regional and international instruments that addresses those issues. In your answer briefly discuss challenges that have been identified as impeding the thriving of electronic commerce in Africa. Lastly, how do you think the advent of Covid-19 pandemic has contributed to those challenges. (25) ​​​ [25 marks] Question 2 During the first and second week of July 2021, South Africa experienced a series of protests which started in Kwa Zulu Natal and within a short time affected other parts of the country. Some were quick to note that social media was playing a role in escalating the protests and needed to be monitored. The ECTA has long regulated the issue of Internet service providers (ISP) and its limited role when it comes to certain issues. Answer the following questions regarding that ISP regime in South Africa: 2.1 Outline the provisions under the ECTA that gives rise to the ISP regime. (5) 2.2 Discuss the limitation of ISPs as outlined in the ECTA. (10) 2.3 Discuss five criticisms levelled against the ISP regime as discussed in the article by Marx and O’Brien titled “To regulate or to Over-regulate? The Internet Service Provider Liability: The Industry Representative Body in terms of the ECT Act and Regulations” (2011) 32 3 Obiter 537-556.​​ (10) [25 marks] Question 3 On 01 July 2021, the Protection of Personal Information Act (POPIA) 4 of 2013 came into full operation. A year earlier the President of South Africa Mr Cyril Ramaphosa, signed Proclamation No. R. 21 of 2020 which gave rise to the commencement of the remaining sections of POPIA. One of the provisions in the proclamation, has a direct impact on a practice that you as a student has been subjected to which might have an adverse effect should you decide to follow up on that. The University has also warned students regarding that practice and have alerted them to the fact that disciplinary hearings might follow should students follow up on such requests from marketers. Answer the following questions: 3.1 Identify and explain the practice that is noted in the scenario above. (5) 3.2 According to the scenario above which provisions in POPIA are applicable? Also, discuss the impact on the marketers that are referred to above. (10) 3.3 The provisions you have identified in 3.2 above will repeal certain provisions which are currently in operation regarding the practice in 3.1. Identify and briefly discuss what those provisions are? (5) 3.4 Discuss the case that dealt with the scenario above. (5) [25 marks] Question 4 The term “Permanent establishment” (PE) is defined as a fixed place of business through which a business of an enterprise is wholly or partly carried on. Write a detailed essay in which you discuss the impact of electronic commerce on PE. In your answer describe whether the following can be considered as PE: a website; server; and Internet Service Provider. (25) ​​​​ ​​​​​​Or You are approached by a legal adviser representing the well-known social network website Facebook from the United States of America. She informs you that they have become aware that a South African company, Friends in SA, has registered the domain name ‘FACEBOEK.CO.ZA’ and has started operating a social network website aimed at the South African market from the domain name. You identify the South African domain-name dispute resolution regulations as the most effective process to employ to ensure the transfer of the domain name ‘FACEBOEK.CO.ZA’. Provide Facebook’s legal adviser with an opinion of their chances of being successful with a complaint instituted in terms of the regulations by way of an analysis of the regulations and the relevant decisions that have already been reached in terms of the regulations. (25) ​​​​​ ​​​​​​[25 marks]