LML4810 Assignment 02

LML4810 Assignment 02. The Scenario given describes an Act know as a “SPAM”. Spam is generally defined as unsolicited Commercial Electronic Communications, received either through e-mail, SMS or electronic junk mail. - 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 The CPA has not repealed section 45 of the ECT Act and therefore the two Acts concurrently regulate aspects of spam, unsolicited electronic communications, or direct marketing1 - For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 pay..........................................