broadcasting and telecommunications

South Africa’s electronic commerce legislation, in the form of the Electronic Communications & Transactions Act, of 2002 (ECTA), became effective in August 2002. ECTA deals with a range of matters, including security, protection of personal information and cyber crime. Many provisions, in turn, empower the Minister of Communications to enact specific regulations to provide the substantive backbone to ECTA.
Bowman Gilfillan has acted in a number of matters in the context of electronic commerce developments and requirements. These include:

• Bowman Gilfillan playing an integral part, through its membership of the Information Technology Lawyers’ Forum, in lobbying the government on certain provisions of ECTA, prior to its adoption;
• advising a number of clients, including Southern Sun Hotels, IBM, UBS Warburg, MTN and Bloomberg on the interpretation of ECTA and their compliance with its provisions and the provisions of other relevant legislation governing their respective electronic commerce activities;
• advising listed companies, such as Standard Corporate & Merchant Bank (a division of Standard Bank) and Afrox, on the applicability of ECTA to company law and disclosure requirements.

interception and monitoring of communications

In general, communications may not be monitored or intercepted due to the right to privacy which is one of the rights guaranteed in the Constitution and which exists in the common law as well. The Regulation of Interception of Communication & Provision of Communication-Related Information Act, of 2002 (RICA) provides that, generally, communications may only be intercepted under a direction issued by a judge. RICA does except certain types of communications from this restriction, including communications in the workplace where interception and monitoring are necessary for a business purpose or where permission is sought for employees’ communications to be monitored. In terms of RICA, if a copy of an interception direction is handed to a telecommunications service provider, the telecommunications service provider must immediately route the duplicate signals of indirect communications to which that interception direction applies to the designated interception centre concerned or make available the necessary assistance to achieve that object.

Bowman Gilfillan has advised a number of clients (including Bloomberg and UBS Warburg) on the implications of this legislation and on related issues, such as the violation of privacy rights.