Cyberlaw in South Africa

For years legal opinion was lacking regarding the Internet. Old statutes and acts are unequal to the task, often demanding ink-signatures scrawled upon paper in the presence of witnesses –impossible demands for an electronic medium. The borderless nature of the Net convoluted matters further, while the rapid development of the Net applied tremendous pressure for an e-legislative process globally.

Those days are fading. Territories such as the USA and Europe have already established laws and directives (e.g. the US Anti-cybersquatting Act and EU e-commerce directive), with case law emerging around issues such as linking. South Africa still lacks a decisive cyberlaw framework, but there is a green paper that should see an act passed within 18 months or so. And while much law cannot apply in letter, legal principles and spirit still do.

Legal firm Cheadle, Thompson and Haysom Inc. touched on these principles and how they affect business on the Net at a recent briefing. While they touched on a broad range of legal topics — domain names, contracts, taxation, copyright/patents, e-commerce and the use of the Internet in the office — central themes were apparent.

Most emphasized was this: when doing business via the Net, state things clearly and loudly. For example, ensure that you have disclaimers and indemnities on your website, include the choice of law (i.e. jurisdiction) in the terms of a contract (such as e-tail buying conditions) and ensure an Internet Usage Policy for your business.

The latter deserves comment: employers can be held accountable for employee actions, for example, e-mail communication that is defamatory or constitutes harassment. For this reason, if no other, employers must protect themselves.

Also central was the existence of competing rights — for example, an employee’s right to privacy and a business’ right to protect itself; another example is the conflicting interests of different countries to tax an e-commerce transaction. This links back to the issue of clearly stated terms — agreeing on rules eases dispute resolution.

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