1. ELECTRONIC COMMERCE REGULATION –
AFRICA PURSUING GLOBAL OPPORTUNITIES
PRIA CHETTY
TECHNOLOGY & INNOVATION LAW AND POLICY ADVISOR/ ENDCODE.ORG

2. Overview of Presentation
Electronic Commerce – The Opportunity and Trends
Background to global electronic commerce regulation – key
models and frameworks.
Countries looking to benefit from electronic commerce need to
assess the policy and legal environment related to the ease of
global, collaborative and integrated approaches.
Group Activity and Discussion: How suitable are our policy and
legal frameworks in connection with developments and trends at
the technology layer - as a lens for for regulatory responsiveness
to electronic commerce?

3. Exploring Electronic Commerce – The
Opportunity, The Trends

8. Do you shop online?
What are your concerns when shopping online?
Group Activity and Discussion:
Trust and Confidence in E-Commerce

9. Exploring Electronic Commerce
Regulation – The EndGame

10. ICT Policy and Regulation
With the right policies and objectives in place, Information
and Communications Technologies (ICTs) can have far-
reaching and positive effects on development. ICTs are not a
magic bullet, nor an alternative to other development
investments, but if applied in the right way they are
potentially a crucial enabling factor for development.

11. E-Commerce Regulation
Convergence of technologies is the major driving factor that contributes to
the exponential growth of electronic commerce. Convergence goes beyond
the use of technology to develop new products and services and is seen as a
vehicle to improve the quality of life of society in South Africa and other
developing countries. Convergence will open new opportunities for all as
everyone gains equal access to information and the global
markets. Small business will be able to compete on an equal footing with big
business.
What is needed is an environment that is conducive to conducting business
and sharing information with confidence. Government will provide support by
setting policy and regulatory frameworks that are appropriate to the
information communications technology sector while taking cognisance of
the pervasive nature of e-commerce and the challenges pertaining to legal
and security matters.

12. The Issue List
Concepts such as “writing,” “document” or “signature” not easily
applied in digital world
Legacy laws - requirement in law for certain transactions to be
conducted in paper/ in person
Requirements in law for record retention in paper
Statutory requirements may prohibit online transacting
Requirement in law for admissibility of evidence
Conflicts in policies, laws, standards and trade practices in different
jurisdictions

13. The Issue List
Protection of personal data exchanged
Online consumer protection
Internet transaction taxation
Criminalisation of new cyber-crimes
Government’s powers and capacity to investigate and prosecute
crimes on the internet
Alignment of intellectual property laws to the digital world
Administration of domain names
Regulation of ISPs

14. Key Concepts in Electronic Commerce Regulation
Technology neutrality
Functional equivalence
Non-discrimination
Two-tier approach, Minimalist approach
Harmonisation
Multi-disciplinary approach
Identity Management and Authentication
Promoting trust and confidence

15. Encoding Electronic Commerce – Key
Models and Regulatory Approaches

16. Electronic Commerce Regulation
UNCITRAL
AU
SADC
ECOWAS
National
Others: OECD, ITU, WIPO
Globally, there are multiple initiatives,
efforts, models at international, national
and regional levels. Particularly to:
Promote harmonised, global, coherent
and co-ordinated approaches;
Address legal barriers to electronic
commerce;
and
Promote trust and confidence in
electronic transacting methods

17. UNCITRAL (1996)
MLEC – Model Law on Electronic Commerce
Promote greater consistency in national and regional
approaches.
Create a more secure legal environment for electronic
commerce for providing a model reference for
legislators
Implemented by several countries
In Africa – implemented by South Africa, Cape Verde,
Mauritius

18. UNCITRAL Model Law
Provides for the legal approach to non-discrimination,
technological neutrality and functional equivalence,
Fundamentally provides for rules for the formation and
validity of contracts concluded by electronic means, for the
attribution of data messages, for the acknowledgement of
receipt and for determining the time and place of dispatch
and receipt of data messages.
Guide to Enactment, provides background and explanatory
text for countries seeking to implement the Model Law
CLOUT (Case Law on UNCITRAL Texts) - cases relevant to
UNCITRAL Model Law

19. Africa
Initiatives by, for instance:
AU (African Union)
SADC (the Southern African Development Community)
ECOWAS (Economic Community of West
African States),
EAC (East African Co-operation)

20. AU
According to the Website:
The Draft Convention gives effect to a Resolution of the last session of the Assembly of
Heads of State and Government of the African Union, and seeks to harmonize African cyber
legislations on electronic commerce organization, personal data protection, cyber security
promotion and cyber crime control.
In pursuance of the principles of the African Information Society Initiative (AISI) and the
African Regional Action Plan for the Knowledge Economy (ARAPKE), the Draft Convention is
intended not only to define the objectives and broad orientations for the Information Society
in Africa, but also to strengthen existing legislations in Member States and the Regional
Economic Communities (RECs) on the Information and Communication Technologies.
It defines the security rules essential to establishing a credible digital space in response to
the major security related obstacles to the development of digital transactions in Africa.
It lays the foundation for an African Union-wide cyber ethics and enunciates fundamental
principles in the key areas of cyber security. It also defines the basis for electronic
commerce, puts in place a mechanism for combating intrusions into private life likely to be
generated by the gathering, processing, transmission, storage and use of personal data and
sets broad guidelines for incrimination and repression of cyber crime. Its adoption would
capitalize African and international experiences in cyber legislations and speed up relevant
reforms in African States and the RECs.

21. AU Draft Convention
The objective of this Convention is to propose the
adoption at the level of the African Union, a
Convention establishing a credible framework for
cybersecurity in Africa through organisation of
electronic transactions, protection of personal data ,
promotion of cyber security , e-governance and
combating cybercrime

22. AU Draft Convention - Complexities
Information security impacts on the security of the
digital and cultural heritage of individuals,
organizations and nations;
The vulnerability in the normal functioning of
institutions can compromise the survival and
sovereignty of States;
Addressing cyber security calls for clear-sighted
political will to define and implement a strategy for
development of digital infrastructure and services
(eservices) and articulate a coherent, effective and
controllable multi-disciplinary cyber security strategy.

23. AU Draft Convention - Challenges
Achieve a level of technological security adequate enough to prevent and
effectively control technological and informational risks;
Build an information society that respects values, protects rights and
freedoms, and guarantees the security of the property of persons,
organizations and nations;
Contribute to the knowledge economy, guarantee equal access to information
while stimulating the creation of authentic knowledge;
Create a climate of confidence and trust, that is:
Predictable in terms of prevention and resolution of disputes; and evolving
because it takes into account continued technological evolution;
Organized: covering the relevant sectors;
Protective: of consumers and intellectual property (civil and penal) of
citizens, organizations and nations;
Secured: striking proper balance between legal and technological security;
Integrated into the international order: providing meaningful articulation
between the national, regional and global levels.

24. AU Convention - Content

25. AU Convention - Criticism

26. SADC Declaration on Information and
Communications Technology (ICT) , 2001
s 2(d):
‘WE SHALL UNDERTAKE to work together to remove barriers
of electronic commerce in our SADC countries as a
means to opening opportunities and benefits such as
increased access to markets, opportunities to create
economic value and cultural assets, reduced administrative
costs, and improvement of public services. There is
a need to adopt and adapt technologies that enable e-
commerce capability to avoid increasing exclusion from
the global economy.’
SADC developed a ‘Model Law on Electronic
Transactions and Data Protection’ in November 2003.

27. SADC (e-Commerce Readiness Study, 2012)
Validation Workshop for the e-Commerce Readiness Study in the SADC
Sub-Region
Part of the e-SADC Strategic Framework o develop a holistic approach to
harnessing ICT for socio-economic development and regional integration
One objective - deployment of eservices, particularly e-commerce to
benefit from global opportunities and develop a regional ecommerce
strategic action plan.
Angola, Botswana, DRC, Lesotho, Mauritius, and South Africa were
earmarked for the readiness study

28. SADC (e-Commerce Readiness Study, 2012)
SADC e-Commerce Strategy encompasses the following four main pillars:
Enabled e-Commerce Environment;
A Capacity Development Programme for e-Commerce
Strengthening e-Commerce Sub-Regional and National Infrastructure; and
Institutionalized Framework to Implement, Evolve and Govern the Current
Strategy
Mauritius:
· ICTA Public Key Infrastructure (PKI);
· Concept of e-Payment;
· Computer Emergency Response Team - Mauritius (CERT-MU); and
· e-Commerce Strategy for Mauritius Post Ltd.

29. SADC Model Law on E-Transactions and E-
Commerce, 2012

30. SADC Model Law,
“This Model Law addresses the scope of application of key concepts and
proposes neutral definitions for them.
The legal recognition of electronic communications and the legal effect of
electronic communications are addressed.
Clear rules for electronic transactions are adopted.
E-commerce issues such as the attribution of electronic communications
and electronic signatures, and the admissibility and evidentiary weight of
electronic evidence are addressed.
The obligations of online suppliers are addressed. These include the type
of information made available to consumers on the information system
where such goods or services are offered, and a consumer’s right to a
cooling-off period, review of a transaction, withdrawal from a transaction,
and the performance, correction or cancellation of a transaction for goods
and services are addressed.
Lastly, service providers’ liability is addressed.”

31. Other SADC Model Laws, 2012
SADC Model Law on Data Protection, 2012
SADC Model Law on Cybercrime, 2012
Technical Assistance was offered by HIPSSA (ITU
project) for the drafting of the Model Laws
The Model Laws were adopted at a SADC Ministerial
meeting in 2012

32. ECOWAS
Directive on Fighting Cybercrime, 2009
Incorporation of legal framework for Member States
Emphasis on cybercrime, data protection, search and
seizure

33. EAC
Regional e-Government Programme adopted by the EAC Council
of Ministers (2006)
Enabling legal framework as a critical factor: e-transactions,
cybersecurity
Harmonized regional and national legal frameworks
Creation of an EAC Task Force (2008)
Background: East African Community Secretariat, ‘Report of the
2nd EAC Regional Taskforce Meting on Cyber Laws’ (2008)
http://r0.unctad.org/ecommerce/event_docs/kampala_eac_2008_report.pdf
The EAC legal framework for Cyber Laws (Phase I) covering
electronic transactions; electronic signatures and authentication,
cyber crime, and data protection and privacy have been adopted
by the Council of Ministers (2012)

34. EAC
“The East African Development Strategy (2011/12 –
2015/16) proposes the key drivers for the realization of the
EAC regional integration agenda in the next five years to
include, among others, creation of a strong legal framework
(…)
The development of cyber laws in the region is critical to
underpin the realisation of full potentials in regional e-
commerce, electronic financial transactions and business
processes outsourcing.”
Hon. Musa Sirma, Chairperson of the Council of Ministers of the East
African Community and Minister for East African Community, Republic of
Kenya, at the occasion of the presentation of the budget of the EAC for
the financial year 2012/2013 to the legislative assembly

38. Encode Electronic Commerce –
Legislative Models and Approaches

39. Legislation Enabling Electronic Transacting
The legal recognition of data messages – technology neutrality
‰The requirement of “writing” to be met by data messages
‰The requirement of “original” documents and functional
equivalence The admissibility and evidential weight of data
messages
‰The retention of data messages
‰The formation and validity of electronic contracts
‰Recognition by parties of data messages
‰The attribution of data messages
Liability of internet service providers
‰Acknowledgement of receipt
‰Time and place of receipt and dispatch of data messages

40. Legislation Enabling Protection of Personal Data
Definition of Personal Information
Definition of Controller
Minimum Security Safeguards
Regulator
Sharing of Personal Information with Third Parties
Cross-border transfer of Personal Information

41. Legislation enabling Electronic Signatures
Electronic authentication technologies allow the recipient
of the electronic communication to:
‰Verify the identity of the sender
‰Verify the fact that the content of the message has not changed
since transmission; and
Ensure that the sender cannot later repudiate the message.
Prescribed (security) standards
Accreditation Authorities
Functional equivalence
Methods to procure integrity of communications, identity of
sender

42. Legislation Governing Electronic Interception and
Surveillance
Definition of interception
Powers of interception – Who? When? Why? How?
Restrictions on interception
Enabling interception capabilities
Interception records
Unlawful interception
Rights of employers

43. Legislation Governing Cybercrime
Definition of cybercrimes
e.g. unauthorised access, e-fraud,
Offences
Penalties
Powers of search and seizure

44. Intellectual Property Legislation
Domain Name Administration
Review of trade mark legislation
Application of copyright in digital world
Copying, distribution, remix
Intellectual property in software

45. South Africa

46. Electronic Commerce Regulation
Electronic Communications Act
Electronic Communications and Transactions Act (ECT
Act)
Protection of Personal Information Act
Regulation of Interception and Interception Related
Communications Act
Constitution of South Africa
Consumer Protection Act

47. ECT Act, 2002

48. Case Law
SB Jafta v. Ezemvelo KZN Wildlife – email acceptance
of employment contract
S v Motata – admissibility of cellphone data

49. Namibia

51. (Some) Lessons from Namibia ICT Policy Proposal
Ensure that there is adequate and appropriate participation in
global dialogues.
Many global initiatives have been undertaken, most led by the
developed countries with minimal input from developing
countries.
Ensure that representatives are fully conversant with the
complexities of global information society issues.
Conduct feasibility studies to ensure that all such mechanisms
are sustainable in terms of financial, technical and human
resources and that, if such vehicles are government-driven, that
there is the political will to sustain them.
The implementation of universal access mechanisms must be
accelerated to participate fully in the Global Information Society.

52. How suitable are our policy and legal frameworks
in connection with developments and trends at
the technology layer - as a lens for regulatory
responsiveness to electronic commerce?
Group Activity and Discussion:
Mind the Gap (45 minutes)

53. In Closing

54. Other Considerations
The drive to harmonise
Multiple regional policy efforts – conflict, impose
compliance obligations, outdated
E-commerce in the context of international private laws e.g.
international contracting
Developing country case studies – unique opportunities
and constraints
African case studies - unique opportunities and constraints
Mauritian data protection regulator, e-signature accreditation
Rwandan ICT strategies
Regulatory impact assessments

55. Pria Chetty
Technology and Innovation
Law and Policy Advisor
endcode.org
Thanx, Questions?