e-commerce, data protection and lawful interception

Electronic transactions, including online retailing, electronic signatures and electronic contracts, are governed by the Electronic Communications and Transactions Act, 2002 (ECTA).  ECTA also deals with, amongst other things, encryption, security, and cyber crime.  The Consumer Protection Act, 2008 (CPA) is also relevant to electronic transactions and digital goods and services.  Bowman Gilfillan’s TMT group regularly advises clients on their online activities and electronic transactions

Bowman Gilfillan has advised various clients in relation to their e-commerce activities, including:

• advising various major mobile device manufacturers in relation to the sale of digital downloads and services to South African consumers
• advising Southern Sun Hotels, IBM, UBS Warburg, MTN, Bloomberg and AngloGold Ashanti, amongst others, 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
• advising on the requirements for digital signatures
• advising on the requirements in relation to the registration of encryption products and services.

The TMT group advises regularly on data protection requirements in South Africa and has assisted major international telecommunications operators and equipment manufacturers, pharmaceutical companies and financial information companies in this regard. South Africa is in the process of developing specific data protection legislation which is anticipated to be adopted in 2012.  This new legislation will establish a data protection authority, impose requirements in relation to cross-border transfers of personal data and impose standards and requirements for the protection of personal data. Until the legislation is adopted and comes into effect, data protection obligations emanate from the Constitutional and common law rights to privacy, which include the right to informational privacy.

In general, the right to privacy, which is guaranteed in the Constitution and in the common law, requires that communications not be monitored or intercepted. The Regulation of Interception of Communication and Provision of Communication-Related Information Act, 2002 (RICA) provides that, generally, communications may only be intercepted under a direction issued by a judge. Providers of telecommunications services are subject to various lawful intercept obligations to facilitate interception and monitoring of their networks in certain circumstances and to retain certain traffic data.  The TMT group has advised a number of clients, including Nokia, AngloGold Ashanti, AT&T, Bloomberg, UBS Warburg, IBM and Walt Disney on the implications of this legislation and on related issues, such as the violation of privacy rights.