Introduction to e-commerce :

 e-commerce Quickguide

The summary provided below is purely for the purposes of the edification of clients and is not intended to be definitive legal advice.

Introduction

The Electronic Communications and Transactions Act No. 25 of 2002 (" the Act") was promulgated on 2 August 2002. It provides for the facilitation and regulation of electronic communications and transactions.  It includes matters such as the prevention of abuse of information systems, the regulation of e-commerce and provision for dispute resolution.

Amongst the objects it sets out to achieve are:

Consumer protection has three areas of focus: the information that must be supplied to the customer (section 43), the contractual rights attaching to the transaction (section 44-46) and the protection of personal information(sections 50 & 51).

EXTRACT

ELECTRONIC COMMUNICATIONS AND
TRANSACTIONS ACT, No. 25 OF 2002

CHAPTER VII
CONSUMER PROTECTION

Scope of application

42. (1) This Chapter applies only to electronic transactions.
(2) Section 44 does not apply to an electronic transaction-
(a) for financial services, including but not limited to, investment services,
insurance and reinsurance operations, banking services and operations
relating to dealings in securities;
(b) by way of an auction;
(c) for the supply of foodstuffs, beverages or other goods intended for everyday consumption supplied to the home, residence or workplace of the consumer;
(d) for services which began with the consumer’s consent before the end of the seven-day period referred to in section 44 (1);
(e) where the price for the supply of goods or services is dependent on
fluctuations in the financial markets and which cannot be controlled by the
supplier;
(f) where the goods-
(i) are made to the consumer’s specifications;
(ii) are clearly personalised;
(iii) by reason of their nature cannot be returned; or
(iv) are likely to deteriorate or expire rapidly;
(g) where audio or video recordings or computer software were unsealed by the consumer;
(h) for the sale of newspapers, periodicals, magazines and books;
(i) for the provision of gaming and lottery services; or
(j) for the provision of accommodation, transport, catering or leisure services and where the supplier undertakes, when the transaction is concluded, to provide these services on a specific date or within a specific period.
(3) This Chapter does not apply to a regulatory authority established in terms of a law if that law prescribes consumer protection provisions in respect of electronic
transactions.

Information to be provided

43. (1) A supplier offering goods or services for sale, for hire or for exchange by way of an electronic transaction must make the following information available to consumers on the web site where such goods or services are offered:
(a) Its full name and legal status;
(b) its physical address and telephone number;
(c) its web site address and e-mail address;
(d) membership of any self-regulatory or accreditation bodies to which that supplier belongs or subscribes and the contact details of that body;
(e) any code of conduct to which that supplier subscribes and how that code of conduct may be accessed electronically by the consumer;
(f) in the case of a legal person, its registration number, the names of its office bearers and its place of registration;
(g) the physical address where that supplier will receive legal service of documents;
(h) a sufficient description of the main characteristics of the goods or services offered by that supplier to enable a consumer to make an informed decision on the proposed electronic transaction;
(i) the full price of the goods or services, including transport costs, taxes and any other or costs;
(j) the manner of payment;
(k) any terms of agreement, including any guarantees, that will apply to the transaction and how those terms may be accessed, stored and reproduced electronically by consumers;
(l) the time within which the goods will be dispatched or delivered or within which the services will be rendered;
(m) the manner and period within which consumers can access and maintain a full record of the transaction;
(n) the return, exchange and refund policy of that supplier;
(o) any alternative dispute resolution code to which that supplier subscribes and how the wording of that code may be accessed electronically by the consumer;
(p) the security procedures and privacy policy of that supplier in respect of
payment, payment information and personal information;
(q) where appropriate, the minimum duration of' the agreement in the case of agreements for the supply of products or services to be performed on an ongoing basis or recurrently; and
(r) the rights of consumers in terms of section 44, where applicable.
(2) The supplier must provide a consumer with an opportunity-
            (a) to review the entire electronic transaction;
(b) to correct any mistakes; and
(c) to withdraw from the transaction, before finally placing any order.
 (3) If a supplier fails to comply with the provisions of subsection (1) or (2), the
consumer may cancel the transaction within 14 days of receiving the goods or services under the transaction.
(4) If a transaction is cancelled in terms of subsection (3)-
(a) the consumer must return the performance of the supplier or, where applicable, cease using the services performed; and
(b) the supplier must refund all payments made by the consumer minus the direct cost of returning the goods.
(5) The supplier must utilise a payment system that is sufficiently secure with reference to accepted technological standards at the time of the transaction and the type of transaction concerned.
(6) The supplier is liable for any damage suffered by a consumer due to a failure by the supplier to comply with subsection (5).

Cooling-off period

44. (1) A consumer is entitled to cancel without reason and without penalty any
transaction and any related credit agreement for the supply-
(a) of goods within seven days after the date of the receipt of the goods; or
(b) of services within seven days after the date of the conclusion of the agreement.
(2) The only charge that may be levied on the consumer is the direct cost of returning the goods.
(3) If payment for the goods or services has been effected prior to a consumer
exercising a right referred to in subsection (1), the consumer is entitled to a full refund of such payment, which refund must be made within 30 days of the date of cancellation.
(4) This section must not be construed as prejudicing the rights of a consumer provided for in any other law.

Unsolicited goods, services or communications

45. (1) Any person who sends unsolicited commercial communications to consumers, must provide the consumer-
(a) with the option to cancel his or her subscription to the mailing list of that person; and
(b) with the identifying particulars of the source from which that person obtained the consumer’s personal information, on request of the consumer.
(2) No agreement is concluded where a consumer has failed to respond to an unsolicited communication.
(3) Any person who fails to comply with or contravenes subsection (1) is guilty of an offence and liable, on conviction, to the penalties prescribed in section 89(1).
(4) Any person who sends unsolicited commercial communications to a person who has advised the sender that such communications are unwelcome, is guilty of an offence and liable, on conviction, to the penalties prescribed in section 89(1).

Performance

46. (1) The supplier must execute the order within 30 days after the day on which the supplier received the order, unless the parties have agreed otherwise.
(2) Where a supplier has failed to execute the order within 30 days or within the
agreed period, the consumer may cancel the agreement with seven days’ written notice.
(3) If a supplier is unable to perform in terms of the agreement on the grounds that the goods or services ordered are unavailable, the supplier must immediately notify the consumer of this fact and refund any payments within 30 days after the date of such notification.

Applicability of foreign law
47. The protection provided to consumers in this Chapter, applies irrespective of the legal system applicable to the agreement in question.

Non-exclusion
48. Any provision in an agreement which excludes any rights provided for in this
Chapter is null and void.

Complaints to Consumer Affairs Committee

49. A consumer may lodge a complaint with the Consumer Affairs Committee in
respect of any non-compliance with the provisions of this Chapter by a supplier.

CHAPTER VIII

PROTECTION OF PERSONAL INFORMATION

Scope of protection of personal information

50. (1) This Chapter only applies to personal information that has been obtained through electronic transactions.
(2) A data controller may voluntarily subscribe to the principles outlined in section 51 recording such fact in any agreement with a data subject.
(3) A data controller must subscribe to all the principles outlined in section 51 and not merely to parts thereof.
(4) The rights and obligations of the parties in respect of the breach of the principles outlined in section 51 are governed by the terms of any agreement between them.

Principles for electronically collecting personal information

51. (1) A data controller must have the express written permission of the data subject for the collection, collation, processing or disclosure of any personal information on that data subject unless he or she is permitted or required to do so by law.
(2) A data controller may not electronically request, collect, collate, process or store personal information on a data subject which is not necessary for the lawful purpose for which the personal information is required.
(3) The data controller must disclose in writing to the data subject the specific purpose for which any personal information is being requested, collected, collated, processed or stored.
(4) The data controller may not use the personal information for any other purpose than the disclosed purpose without the express written permission of the data subject, unless he or she is permitted or required to do so by law.
(5) The data controller must, for as long as the personal information is used and for a period of at least one year thereafter, keep a record of the personal information and the specific purpose for which the personal information was collected.
(6) A data controller may not disclose any of the personal information held by it to a third party, unless required or permitted by law or specifically authorised to do so in writing by the data subject.
(7) The data controller must, for as long as the personal information is used and for a period of at least one year thereafter, keep a record of any third party to whom the personal information was disclosed and of the date on which and the purpose for which it was disclosed.
(8) The data controller must delete or destroy all personal information which has
become obsolete.
(9) A party controlling personal information may use that personal information to
compile profiles for statistical purposes and may freely trade with such profiles and statistical data. as long as the profiles or statistical data cannot be linked to any specific data subject by a third party.

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