Guide to the ECT Act

The Electronic Communications and Transactions Act 25 of 2002 (“the Act” / “ECT Act”) became law on Friday, 30 August 2002.  This marked the end of a process initiated by the South African Government in 1999 to establish a formal structure to define, develop, regulate and govern e-commerce in South Africa.

The word cloud on the right provides an overview of the ECT Act.

The ECT Act is one of many sources of law which impact on electronic communications and transactions and must not be read in isolation of relevant statutory and common law. It applies to any form of communication by e-mail, the Internet, SMS etc except for possibly voice communications between 2 people. The Act is also “an enabling” piece of legislation in that it provides functional equivalents for paper-based concepts (including writing, original and signature), some of which are encountered in over 300 pieces of legislation identified by the Department of Communications in 1999 which were not suitable to the information age as they all had paper-based concepts within them.

The Act is also a very wide piece of legislation and also deals issues which are not related to electronic communications and transactions (such as cyber inspectors, liability of service providers and domain names). It also attempts to provide legal certainty in areas of law where there was legal uncertainty prior to August 2002 (e.g. the formation of contracts and the status of so-called “click wrap” agreements).

SUMMARY OF THE ACT

Chapter I: Interpretation, Objects and Application

This part of the Act defines critical words and phrases and sets out the main objects of the Act.

Chapter II: Maximising Benefits and Policy Framework

The objective is to maximise the benefits the Internet offers by promoting universal access in under serviced areas and ensuring that the special needs of particular communities, areas and the disabled are duly taken into account.  The Act requires the Minister to develop a 3-year national e-strategy for the Republic by no later than 30 August 2004.  This must be submitted to the Cabinet for approval, which, on acceptance, must declare the implementation of the national e-strategy as a national priority.  The national e-strategy must set out the electronic transactions strategy of the Republic, programmes and means to achieve universal access, human resource development and development of SMMEs, ways to promote the Republic as a preferred provider and user of electronic transactions in the international market, the utilising of existing Government initiatives in attaining the objectives of the e-strategy, the role expected to be performed by the private sector in the implementation of the new national strategy, the objectives, timeframes and resources required to achieve the objectives provided for in the national e-strategy.

Tags: ECATA, ECT Act, electronic communications and transactions act