NAVIGATING THROUGH THE MODULE

You will notice that the LML4810 site has different tools and folders on the left-hand side. Each tool
has a specific purpose and will help you navigate this site. The following is a brief explanation on how
to use these tools and how to locate your study material:

Welcome page

This is where you read the welcome note from your lecturer(s).

Announcements

Throughout the semester, we will inform you of important matters pertaining to the course, and the
announcement tool will be utilized for that. Make sure you check your emails regularly forthese
announcements.

Schedule

This tool will remind you of the important dates especially due dates on assignments and the
examination.

Official study material

This tool contains important documents to help you navigate the course content. You will find the
following documents under this tool:

All tutorial letters (101 and 301) except feedback on assignments, which will be released after the due
date of each assignment.

Prescribed reading list folders

A list of prescribed sources to assist with your studies is contained in tutorial letter 103. Most, if not
all the sources on that list are contained under this folder. There are various prescribed material folders
including the following:

• Cases. Cases are vital in studying law as they interpret specific principles. Students are expected to
study and apply these when compiling both assignments and examination.

• Extracts from book(s). Please note there is no prescribed textbook for LML 4810 but only extracts
from book(s).

• Journal articles. These contain commentaries on specific issues in this course by different authors.
Students are expected to study these and apply when necessary; and

• Legislation. This folder contains some legislative documents and international instruments referred
to in the learning units.

NOTE: This module DOES NOT have a study guide. The above prescribed material can also be accessed
on the Internet.

Other tools

Other tools on the site are for administrative purposes.

Feel free to navigate the site. Most importantly make sure you gather all the resources you will need
for your LML 4810 journey.
LEARNING UNITS

The module has eight learning units which highlights the impact of e-commerce on select commercial
aw issues. The units are outlined below.

LEARNING UNIT 1: INTRODUCTION TO LEGAL ASPECTS OF ELECTRONIC COMMERCE

Overview

In this learning unit we will introduce you to the subject matter of this module. An introduction to the
Internet and the way the Internet operates will be explained. An exposition of the major role players
involved in cyber trading or electronic commerce (e-commerce) will be provided.

Also, the difference between entities that provide access and Internet services (service providers) to
Internet users and entities that provide and operate the actual electronic commercial sites (content
providers) will be explained. The legal challenges that are posed by e-commerce on some aspects of
the law will be briefly highlighted. Finally an overview of the whole course will be outlined.

Learning outcomes

After completing this learning unit you should be able to do the following:

• explain what the Internet is, and how it operates.

• explain what a network is; and distinguish it from the Internet.

• identify and distinguish between the different role players involved on the Internet.

• explain the various contractual relationships that may be created between service

providers, access providers, content providers and customers.

• describe the various services offered on the Internet; and

• explain what e-commerce is and the challenges it poses on already existing concepts.

1.1 Introduction to the Internet and the development of e-commerce

STUDY:

• Eiselen in Information and Communications Technology Law 149-152.

• Buys Cyberlaw: The Law of the Internet @ SA 11-36.

1.2 Legal challenges of e-commerce

STUDY:

Eiselen in Information and Communications Technology Law 152-154; and

Green paper 11; 15-17.

1.3 Overview of the module

The legal challenges raised in the sources above will be examined in detail in the following
learning units:

• Learning unit 2, international, regional, and national trends in legislation and regulatory regimes will
be briefly outlined.

• Learning unit 3, the issue of Internet contracts will be outlined to see how rules of consensus are
applied and to establish the time and place of the conclusion of a contract. Also, the formalities and
different ways in which payment may be made over the Internet are dealt with.

• Learning unit 4, consumer protection issues will be covered in this unit. Specific issues affecting
consumers such as direct marketing and spam; protection of personal information will be outlined.
Both international and local trends regarding the specific issues will also be highlighted.

• Learning unit 5 will cover copyright infringement on the Internet. The effects of digitization on
copyright works, forms of infringement in the network environment and service provider liability will
also be covered.

• Learning unit 6, the protection of electronic databases will be addressed in this unit.

• Learning unit 7, the use of trade marks on the Internet and the registration of domain names will be
discussed; and

• Learning unit 8 deals with the implication of e-commence on taxation.

1.4 Conclusion

You should now fully understand the global network structure and the functional role played by

different parties. You should also be able to describe the various services offered on the

Internet and understand the various contractual relationships that are created between service

providers, access providers, content providers and customers. Lastly, you should be able to

identify what the challenges of e-commerce are on specified legal issues.

In the next learning unit, international, regional, and national trends leading to legislative and

regulatory regimes of e-commerce will be highlighted.

LEARNING UNIT 2: LEGISLATIVE TRENDS AND REGULATORY REGIMES IN ECOMMERCE

Overview

In this learning unit we shall highlight the trends in legislation and regulatory regimes of ecommerce
internationally, regionally, and nationally.

Learning outcomes

After completing this learning unit you should be able to do the following:

• Understand the role and function of international trends regarding e-commerce.

• Understand the role and function of regional trends regarding e-commerce.

• Understand the role and function of national trends in regulating e-commerce, with special focus on
South African legislative regimes namely: Green paper on electronic commerce; Electronic
Communication and Transactions Act of 2002 (ECTA); and proposed Electronic Communications and
Transactions Amendment Bill of 2012.

2.1 Introduction

STUDY:

• Eiselen in Information and Communications Technology Law 154-156

2.2 International trends in legislation and regulatory regimes

STUDY:

• Green paper 20-22.

• UNCITRAL Model Law on e-Commerce with Guide to Enactment (1996); and Journal article(s)

• Faria JAE “e-Commerce and International Legal Harmonization: Time to go beyond functional
equivalence?” (2004) 16 SA Merc LJ 529-555.

The United Nations Commission on International Trade Law (UNCITRAL) established a working group
to draft legal rules on electronic commerce in 1996. The UNCITRAL Model Law on e-Commerce aims
to create a more secure legal environment for what has become known as “electronic commerce” by
providing a tool for states to enhance their legislation regarding paperless communication and storage
of information. The Model Law is expressed in a technologically neutral manner, so that it can apply
not only to existing, but also to future technology.

2.3 Regional trends in legislation and regulatory regimes

Africa consists of 54 countries with different ethnic groups cultures; traditions; language et cetera.

… In July 1999 heads of states and the governments of the OAU issued a declaration calling for the
establishment of an African Union, with the view inter alia, to accelerate the process of integration in
the continent. And to enable it to play its rightful role in the global economy while addressing
multifaceted social, economic and political problems compounded by certain negative aspects of
globalization.

The AU’s objectives are among others to achieve greater unity and solidarity between the African
countries and the peoples of Africa; to harmonize the policies between the existing and future regional
economic communities for gradual attainment of the objectives of the Union; also advance the
development of the continent by promoting research in all fields particularly science and technology.
The AU advocated for different regional economic communities which were formed to specifically deal
with certain issues affecting this region. The African region has currently eight regional communities
or otherwise known as REC’s. These REC’s include: Arab Maghreb Union (AMU); Common Market for
Eastern and Southern Africa (COMESA); Community of Sahel-Saharan states (CEN-SAD); East African
Community (EAC); Economic Community of Central African States (ECCAS); Economic Community of
West African States (ECOWAS); Intergovernmental Authority for Development (IGAD); and Southern
African Development Community (SADC). [Tladi The Regulation of Unsolicited Electronic
Communications (2017) 108- 110].

This section will cover legal instruments in the African region including the African
Union’s (AU) Malabo Convention and two RECs namely: SADC Model law on ecommerce; and Common
Market for Eastern and Southern Africa (COMESA) Model law on e-commerce.

STUDY:

• African Union (AU) Convention on Cybersecurity and Personal Data Protection

(adopted on 27 June 2014).

• COMESA Model Law on Electronic Transactions (2010).

• SADC Model Law on Electronic Transactions and Electronic Commerce (2012).

NOTE: when studying the above instruments take note of its preamble; objectives. application and e-
commerce provisions that align with the module content.

Journal article(s)

• Ewelukwa N “Africa ready for electronic commerce: A critical appraisal of the legal frameworks for
ecommerce in Africa” (2011) 13 3-4 European Journal of Law Reform

550-576.

• Ndonga D “E-Commerce in Africa: Challenges and Solutions” (2012) 5 African Journal

of Legal Studies 243-268; and

• Nwabueze JN “Reflections on legal uncertainty for e-commerce transactions inCameroon” (2017) vol.
20 The African Journal of Information and Communications (AJIC) 171-180.

NOTE: when studying the sources above note the challenges that e-commerce poses in Africa.

Both general and legal challenges should be considered. Also, refer to the instruments above to see if
the challenges identified have been addressed in those instruments.

2.4 South African legislation and regulatory regime

STUDY:

• Gereda in Telecommunications Law in South Africa 262-295; and

• Buys Cyberlaw: The Law of the Internet @ SA (2000) 97-112.

Journal article(s)

• Jobodwana ZN “E-Commerce and Mobile Commerce in South Africa: Regulatory Challenges” (2009)
4 4 Journal of International Commercial Law and Technology

287-298.

Legislation(s) and policy documents

• Green paper on e-commerce: making it your business 17-20, and 24-26.

• Electronic Communications and Transaction Act 2002; and

• ECT Amendment Bill of 2012.

NOTE: Students should only study provisions in the instruments above only as they relate to
the challenges/ topics covered in this module.

LEARNING UNIT 3: INTERNET CONTRACTS

Overview

In this learning unit, we shall outline several aspects of contracts concluded on the Internet. Specific
provisions have been enacted in the ECTA providing for electronic contracting. We shall explain how
the rules of consensus are applied to establish whether a contract has been concluded, and if so, where
and when that contract came into existence. The formalities that are, or may be, required to conclude
legally valid and binding agreements, will be outlined as well as the way in which such agreements
may be amended.

Learning outcomes

After completing this learning unit, you should be able to do the following:

• apply the rules regarding offer and acceptance to contracting on the Internet.

• explain what a "click-wrap contract" is and whether such a contract will be valid.

• determine when and where an Internet contract was concluded.

• explain whether an Internet contract can comply with the formalities of writing and signature.

• explain the concept ‘smart contracts’; and

• explain how an Internet contract can be amended.

3.1 Basic principles of contract formation

3.1.1. Formation of a contract

STUDY

• Eiselen in Information and Communications Technology Law 156-169; and

• Green paper 27-29; and 30-35.

Journal articles:

• Stoop “SMS and Email Contracts: Jafta v Ezemvelo KZN Wildlife” (2009) 21 1 SA Merc

LJ 110-125; and

• Papadopoulus “Short Message Services and e-Contracting: Jafta v Ezemvelo KZN

Wildlife [2008] 10 BLLR 954 (LC) (2010) Obiter 188-200.

Case(s): Jafta v Ezemvelo KZN Wildlife [2008] 10 BLLR 954 (LC).

3.1.2. Automated contracts and mistake

STUDY:

• Eiselen in Information and Communications Technology Law 170-171; and

• Section 1 (definition of automated transaction); and section 20 of the ECTA.

3.1.3. Incorporation by reference (click wrap contracts)

STUDY:

• Eiselen in Information and Communications Technology Law 179-181.

• Pistorius “Click-Wrap and Web-Wrap Agreements” (2004) 16 4 SA Merc LJ 568-576;

and

• Section 11 of the ECTA.

3.1.4. Time and place of the contract

STUDY:

• Eiselen in Information and Communications Technology Law 172-174; and

• Sections 23 and 24 of the ECTA.

3.1.5. Facilitation of electronic transactions

STUDY:

• Chapter 3 of the ECTA; and

• Gereda in Telecommunications Law in South Africa 268-276.

3.2 Formalities and signatures

STUDY:

• Eiselen in Information and Communications Technology Law pp 174-179 Legal instrument(s)

• Section 1 (definition of electronic signature); sections 13; 37; and 38 of the ECTA; and

• UNCITRAL Model Law on Electronic Signatures with Guide to enactment (2001).

Case(s)

• Borcherds and Another v Duxbury and Others (1522/2020) [2020] ZAECPEHC 37 (1522/2020)

• Global & Local Investments Advisors (Pty) Ltd v Nickolaus Ludick Fouché (71/2019) [2019] ZASCA 08
(18 March 2020); and

• Spring Forest Trading v Wilberry (Pty) Ltd t/a Ecowash Combined Motor Holdings Limited (725/13)
[2014] ZASCA 178; 2015 (2) SA 118 (SCA).

Journal article(s)

• Mupangavanhu “Electronic signatures and non-variation clauses in the modern digital world: the
case for South Africa” (2016) 133 SALJ 853-873.

• Srivastava A “Electronic signatures in online transactions: Lessons from South Africa” (2016) 45 2-3
142-152; and

• Swales “The regulation of electronic signatures: time for review and amendment” (2015) 132 1 SALJ
257-270.
3.3 Electronic payment systems

STUDY

• Eiselen in Information and Communications Technology Law 210-220; and

• Green paper 99-103.

LEARNING UNIT 4: CONSUMER PROTECTION

Overview

In this learning unit we will discuss the implications of e-commerce on consumer protection. Concepts
such as direct marketing; unsolicited communications (spam), and data protection will be outlined in
this unit. Both international and local trends regarding consumer protection will be highlighted.

Learning outcomes

After completing this learning unit, you should be able to do the following:

• Understand the background of consumer protection in South Africa.

• Understand what the rights of consumers are under different legislation.

• Understand the duties of vendors in an online environment.

• Know how consumers are protected from deceptive direct marketing practices like

spam both locally and internationally; and

• Understand how consumer’s personal information is processed.

4.1 Background on consumer protection in South Africa

STUDY

• Eiselen in Information and Communications Technology Law 195-197; and

• Green paper 75-78.

The first consumer protection legislation in South Africa (Consumer Protection Act 68 of
2008,hereafter “CPA”) was assented into law on the 24 April 2009 and came into effect on the 31
March 2011. The CPA is a culmination of several decades of debate and legal development in the field
of consumer protection in South Africa, involving the government, national and provincial legislature’
and academics (van Eeden Consumer Protection Law in South Africa23). The CPA regulates the
marketing of goods and services to consumers, plus relationships,transactions and agreements
between them and producers, suppliers, distributors, importers,retailers and service providers of
goods and services et cetera (Van Eeden 38). The coming into operation of CPA repealed some laws
(see section 121 of CPA); and amended others (schedule 1 of CPA).

The ECTA contains the first provisions dealing with consumer protection in an online environment. The
Protection of Personal Information Act 4 of 2013 (hereafter “POPIA”) applies fully or partly to auto-
mated processing of personal information and to non-automated processing of personal information.

4.2. Legislative provisions on consumer protection

4.2.1 Electronic Communications and Transactions Act of 2002 (ECTA)

The Green paper at 75 notes:

The electronic marketplace offers unprecedented choice and twenty-four hours accessibility and
convenience. It gives established marketers and new entrepreneurs low-cost access to a virtually
unlimited customer base. With these benefits also comes the challenge of ensuring that the virtual

marketplace is a safe and secure one to purchase goods, services, and access electronic information.
Consumers must be confident that the goods and services offered online are fairly represented and
that the merchants with whom they are dealing (many of whom may be in another part of the world),
will deliver goods in a timely manner and are not engaged in illegal business practices such as fraud or
deception. Consumers must be protected from the following dangers:

• unsolicited goods and communications (spam).

• dangers resulting from ease and convenience of buying online.

• insufficient information about goods and services.

• the abundantly accessible nature of websites.

• dangers of invasion of privacy.

• insufficient information about goods or about their supplier, since the supplier is not in a position to
physically examine the goods offered; and

• cyber fraud.

STUDY:

• Gereda in Thornton et al Telecommunications Law in South Africa 276-279.

• Eiselen in Information and Communications Technology Law 195-210; and

ECTA provisions

• Section 2; Chapter 7 and 8 of the ECTA.

4.2.2 Consumer Protection Act (CPA 2008)

(a) Scope of the Act

The purpose of CPA as stated in section 3 is to promote and advance economic welfare ofconsumers
in South Africa among others by:

• establishing a legal framework for the achievement and maintenance of a consumer market that is
fair, accessible, efficient, sustainable, and responsible.

• to protect consumers from unfair, unreasonable, or otherwise improper practices, and also from
deceptive, misleading, unfair or fraudulent conduct.

• to promote consumer confidence, empowerment, and the development of a culture of consumer

responsibility through individual and group education, vigilance, advocacy, and activism (section 3(1)
(a, d and f)).

The CPA applies to transactions within or having an effect within the Republic which promotes goods
and services. It also establishes a National Consumer Commission (sections 85-

91). The CPA also gives rise to fundamental consumer rights contained in sections 8-67.
(b) Fundamental consumer rights

The CPA introduces the following fundamental consumer rights:

• Right to equality in consumer market (see part A sections 8-10).

• Right to privacy (see part B sections 11-12).

• Right to choose (see part C sections 13-21).

• Right to disclosure and information (see part D sections 22-28).

• Right to fair and responsible marketing (see part E sections 29-39).

• Right to fair and honest dealing (see part F sections 40-47).

• Right to a fair, just and reasonable terms and conditions (part G sections 48-52); and

• Right to fair value, good quality and safety (see part H sections 53-61).

4.2.3 Protection of Personal Information Act 2013 (POPIA)

(a) Scope of Act

The purpose of the Act as stated in section 2 is to:

• Give effect to the constitutional right to privacy, by safeguarding personal information when
processed by a responsible party.

• Regulate the way personal information may be processed, by established conditions, in harmony
with international standards, that prescribe the minimum threshold requirements for the lawful
processing of personal information.

• Provide persons with rights and remedies to protect their personal information from processing that
is not in accordance with this Act; and

• Establish voluntary and compulsory measures, including the establishment of the Information
Regulator (chapter 5 of POPI), to ensure respect for and to promote, enforce and fulfill the rights
protected by the Act.

(b) Data protection principles

STUDY:

• Green paper 78-81; and

• Swales “Protection of personal information: South Africa’s answer to the global phenomenon in the
context of unsolicited electronic messages (spam)” (2016) 28 1 SA

Merc LJ 60-65.

POPIA provides for the lawful processing of personal information in section 4. The conditions for lawful
processing of personal information by or for a responsible party are:

• Accountability (see section 8).

• Processing limitation (see section 9-12).

• Purpose specification (section 13-14).

• Further processing limitation (see section 15).

• Information quality (see section 16).

• Openness (see section 17-18).

• Security safeguards (section 19-22); and

• Data subject participation (see section 23-25).

POPIA also covers the rights of data subjects in section 5. This includes the right to have the data
subject’s personal information processed in accordance with the conditions for the lawful processing
of personal information as set out in chapter 3 of the Act. This also includes the right to be notified of
certain things (see section 18 and 22 of the POPIA).

4.3 Specific issues affecting online consumers.

4.3.1 Introduction

The discussion below will be on two of the dangers stated above that consumer’s need to be protected
from, for example: unsolicited goods and communications (spam); and dangers of invasion of privacy
(data protection).

4.3.2 Unsolicited communications (spam) and direct marketing

4.3.2.1 ECTA

(a) Definitions

Refer section 1 for the following definitions: consumer; data controller; data message; data subject;
electronic communication; electronic mail; and personal information.

(b) Spam provisions under ECTA

Refer to section 45; section 89(1); and proposed amendments in ECT Amendment Bill.

STUDY:

• Tladi SEM The Regulation of Unsolicited Electronic Communications (SPAM): A comparative Study
(Unpublished LLD UNISA 2017) 237-252 and 281-285.

• Case: Ketler Investments CC t/a Ketler Presentations v Internet Service Provider’s Association [2014]
1 All SA 566 (GSJ)

Journal article(s):

• Papadopoulus “Are we about to cure the scourge of spam? A commentary on current proposed South
African Legislative Intervention” (2012) 75 THRHR 223-240.

• Pistorius and Tladi “The Hall of Shame: Double Standards for Spam” (2014) 26

3 SA Merc LJ 688-705; and

• Tladi “The Regulation of Unsolicited Commercial Communications (SPAM): Is the OptOut Mechanism
Effective?” (2008) 125 (1) SALJ 178-192.

4.3.2.2 Consumer Protection Act

(a) Definitions

Refer to section 1 for the following definitions: advertisement; consumer; direct marketing; electronic
communications; goods; and service.

(b) Direct marketing provisions under CPA

STUDY:

• Papadopoulos in Cyberlaw @ SA III: The law of the Internet (2012) 87-89.

• Sections 11-12 (part B which deals with the consumers’ right of privacy, and the right to restrict
unwanted direct marketing; and

• Regulation 4 which deals with the mechanisms to block direct marketing communications.

• Tladi SEM The Regulation of Unsolicited Electronic Communications (SPAM): Acomparative Study
(Unpublished LLD UNISA 2017) 253-266.

Journal articles:

• Hamann and Papadopoulos "Direct marketing and spam via electronic communications: An analysis
of the regulatory framework in South Africa" (2014) 47 1

De Jure 42-62; and

• Papadopoulus “Are we about to cure the scourge of spam? A commentary on current proposed South
African Legislative Intervention” (2012) 75 THRHR 223-240.

4.3.2.3 The Protection of Personal Information Act (POPIA)

(a) Definition of direct marketing

Refer to the following definitions in section 1 of the POPIA: data controller; data subject; direct
marketing; electronic communications; person; personal information; processing; Regulator; and
responsible party.

(b) Direct marketing and spam provisions under POPIA

Sections 69 and 70 deals with the right of data subjects regarding direct marketing by means of
unsolicited electronic communications, directories and automated decision making.

STUDY:

• Tladi SEM The Regulation of Unsolicited Electronic Communications (SPAM): A

comparative Study (Unpublished LLD UNISA 2017) 266-281; 296-302; and 303-314.

NOTE: Compare and contrast the legislative provisions in SA on spam. Does the POPIA

adequately protect consumers from receiving spam.

4.3.2.4 African regional instruments that regulate spam

Students should refer the following:

• AU Convention: Article 4 (electronic commerce section).

• COMESA: Section 25; and

• SADC Model law: Section 30

STUDY:

Tladi SEM The Regulation of Unsolicited Electronic Communications (SPAM): A comparative

Study (Unpublished LLD UNISA 2017) 115-140.

NOTE: When studying the above consider the impact of Model laws and Conventions on SAs

legislative provisions on spam.

4.3.2.5 International initiatives in regulating spam

Several countries have anti-spam legislation in place. Anti-spam legislations in these countries differ
when it comes to defining the terms; and the mechanisms (opt-in or opt-out mechanism) used to
protect consumers from receiving unwanted email and the penalties meted out (civil or criminal or
both).

(a) USA

STUDY:

• Tladi “The Regulation of Unsolicited Commercial Communications (SPAM): Is the OptOut Mechanism
Effective?” (2008) 125 (1) SALJ 188-191.

• Tladi SEM The Regulation of Unsolicited Electronic Communications (SPAM): A

comparative Study (Unpublished LLD UNISA 2017) 141-194.

NOTE: When studying the sources above focus on how the USA defines spam at Federal

level. The provisions that have been included in their legislation that SA doesn’t have.

(b) Australia

STUDY:

• Tladi SEM The Regulation of Unsolicited Electronic Communications (SPAM): A

comparative Study (Unpublished LLD UNISA 2017) 195-235.

NOTE: When studying the sources above focus on how Australia defines the term spam. The

provisions that have been included in their legislation that SA doesn’t have. Also contrast with

SA’s position.

The jurisdictions noted above are not the only ones that have anti-spam legislation or antispam
provisions. Do a Google search to see how many jurisdictions now have anti-spam legislations in place?

LEARNING UNIT 5: COPYRIGHT

Overview
In this learning unit, we shall explore the implications of e-commerce on intellectual-property rights,
especially on copyright works in digital format. We shall examine the copyright implications of linking,
framing and the creation of mirror sites on the Internet. Service-provider liability for hosting infringing
material and the limitations of liability of ISPs for copyright infringement will also be examined.

Learning outcomes

After completing this learning unit, you should be able to do the following: understand the impact of
e-commerce on copyrights.

• understand the copyright implications of the digitization of works.

• apply the law to questions regarding infringement by linking, framing or the creation of

mirror sites.

• understand and apply the concept “contributory infringement”.

• explain and apply the rules regarding the limitation of service provider liability; and

• evaluate the position obtaining in South Africa as compared with the position obtaining

in other jurisdictions.

5.1 Introduction

Green paper 56

Intellectual property rights are legal means to protect and balance the interests of an individual against
those of the public. This is done in terms of disclosure, dissemination, alteration, use and abuse of
ideas, with an exclusive right to control and profit from invention and/or authorship of such intangible
goods, services and ideas. It has become relatively easier to infringe intellectual property through the
use of electronic technologies. Therefore, there is an urgent need to formulate a system of laws that
define and protect intellectual property as a response to technological change, particularly emerging
circumvention technologies that are constantly defying copyright on electronic systems. In this
context, it becomes increasingly challenging to ensure intellectual property rights and related
neighbouring rights are applied to the electronic environment in a manner that is promoting e-
commerce. South African intellectual property law is not fully equipped to deal with the implications
of the Internet, convergence, multimedia, digital technology and hence e-commerce.

5.2 Copyright infringement on the Internet

STUDY:

• Green paper 60-61; and

• Pistorius in Information and Communications Technology Law 292-302.

5.3 Legislative responses to digital agenda

STUDY: Pistorius in Information and Communications Technology Law 267-270.

5.4 Liability for infringement

STUDY:

Pistorius in Information and Communications Technology Law 322-335.

• Journal article(s): Marx and O’Brien “To regulate or to Over-Regulate? Internet Service Provider
Liability: The Industry Representative Body in terms of the ECTA and

Regulation (2011) Obiter 537-556.

• Case(s): Ketler Investments CC t/a Ketler Presentations v Internet Service Provider’s Association
[2014] 1 ALL SA 566 (GSJ).

Legislation

Electronic Communications and Transactions Act 25 of 2002: Guidelines for Recognition of Industry
Representative Bodies of Information System Service Providers (Government Notice 1283 in
Government Gazette 29474 of 14 December 2006).

5.5 Fair dealing

STUDY:

Pistorius in Information and Communications Technology Law 335-340.

LEARNING UNIT 6: DATABASES

Overview

In this learning unit, we shall explore the protection of electronic databases. We shall examine the
process of database creation and explore the role of electronic databases in the information society.
The copyright protection of original electronic databases and the sui generis protection of non-original
databases will also be examined.

Learning outcomes

After completing this learning unit, you should be able to do the following:

• understand the role of e-databases on the Internet.

• understand the process of creating a database.

• understand and interpret the provisions of the international treaties.

• understand and apply the concept "originality".

• explain and apply the rules regarding the protection of non-original databases in the EU; and

• evaluate the position obtaining in South Africa as compared with the position obtaining in other
jurisdictions.

6.1 Description of the term electronic databases

STUDY:

Pistorius in Information and Communications Technology Law 340-342.

6.2 Legal protection of electronic databases

STUDY: Pistorius in Information and Communications Technology Law 342-345.

6.3 International initiatives

STUDY: Pistorius in Information and Communications Technology Law 345-354.

6.4 The position in South Africa

STUDY: Pistorius in Information and Communications Technology Law 355-362.

LEARNING UNIT 7: DOMAIN NAMES AND TRADE-MARKS

Overview

In this learning unit, we will explore the implications of the registration of domain names. The trade
mark and domain name conflicts will also be discussed. We shall explore online dispute resolution for
solving legal problems that will arise from Internet trading. We shall examine the existing online
dispute-resolution mechanism, and in particular the rules created by ICANN for on-line dispute
resolution of issues relating to domain name registration.

Learning outcomes

After completing this learning unit, you should be able to do the following:

• understand what the nature and function of domain names are.

• know why and how to register a domain name.

• understand what the interrelations between domain names and trade marks are.

• know how and where on-line dispute resolutions are conducted.

• understand how the Domain Name system is managed in South Africa.

• understand how well-known marks are protected in South Africa; and

• know how the alternative dispute resolution functions are applied.

7.1 Introduction

STUDY:

• Green paper 94-98; and

• Pistorius in Information and Communications Technology Law 221-224.

7.2 Relationship between domain names and trade marks

STUDY: Pistorius in Information and Communications Technology Law 224-226.

7.3 Management of the domain name system

STUDY: Pistorius in Information and Communications Technology Law 247-265.

Cases:

• Allstates Global Karate Do Inc d/b/a World Seido Karate Organisation v Saids Karate 2009
DomainDisputes.co.za APZA2009-0030.

• Telkom SA Ltd & TDS Directory Operations (Pty) Ltd v The Internet Corporation 2007
DomainDisputes.co.za (Appeal) APZA2007-0005; and

• Uponor Innovation AB & Uponor GmbH v Pieter Pretorius 2010 DomainDisputes.co.za ZA2010-0042.

Journal article(s)
• Hurter “Not the Lesser Evil: Amending the Regulations for the Resolution of Domain Name Disputes
in the ‘.za’ Domain Combat Reverse Domain Name Hijacking” (2012)

24 4 SA Merc LJ 416-423; and

• Hurter and Pistorius “The New .Africa Top Level Domain: An African initiative in ensuring Africa’s
rightful place on the Global Network” (2014) 17 (3) PER/PELJ 1071-

1108.

Legislation

Electronic Communications and Transactions Act (25/2002): Alternative Dispute Resolution

Regulations Government Notice R. 1166 in Regulation Gazette No. 8587 of 22 November

2006.

LEARNING UNIT 8: TAXATION AND E-COMMERCE

Overview

In this learning unit we shall explore the implications of e-commerce on taxation. Some international
initiatives that have been taken to implement new tax rules that govern income tax on the Internet
will be explored. Emphasis will be placed on the challenges posed by ecommerce on the jurisdiction
to tax income (the residence and source-based taxation), and the administration and enforcement of
tax laws.

Learning outcomes

After completion of this learning unit, you should be able to do the following:

• explain the impact of e-commerce on income tax in both domestic and foreign law, and the initiatives
taken by governments and/or organizations with regard to this issue.

• explain the impact of e-commerce on the concepts used to determine the residence status of
individuals (ordinary residence and physical presence test) and persons other than individuals (for
example, the place of effective management) in South Africa.

• explain the impact of e-commerce on the source basis of taxation that is applied in respect of non-
residents; and

• explain what constitutes a “permanent establishment” (PE) of an enterprise in a given jurisdiction,

and whether an ISP, telecommunication facilities, website and web server can be considered a
permanent establishment of an enterprise.

8.1 Introduction

STUDY:

• Gutuza “Tax and e-commerce: where is the source” (2010) 127 2 SALJ 328; and

• Oguttu and Tladi “E-Commerce: A Critique on the Determination of a “Permanent Establishment” for
Income Tax Purposes from a South African Perspective” (2009) 20 (1) Stell LR 74-96.

8.2 Challenges posed by e-commerce on the jurisdiction to tax income

STUDY:
Gutuza “Tax and e-commerce: where is the source” (2010) 127 2 SALJ 328-338.

8.4 International tax and e-commerce

STUDY:

• Green paper 36-38.

• Gutuza T “Tax and e-commerce: where is the source” (2010) 127 2 SALJ 328-338; and

• Oguttu and Tladi “E-Commerce: A Critique on the Determination of a “Permanent

Establishment” for Income Tax Purposes from a South African Perspective” (2009) 20(1) Stell LR 74-96.

Good luck with your studies.

LML4810 lecturer(s)